Arizona's new medical marijuana law is going to create new problems for employers trying to promote a safe workplace while respecting the new rights of those who will be able to legally inhale the drug.
The law spells out that a worker who has one of those state-issued cards allowing them to possess and use marijuana cannot be fired or otherwise disciplined solely for testing positive on a drug test.
Nothing in Proposition 203 permits an employee to imbibe while on the job. And the law says that immunity from being discharged does not apply to a worker who is "impaired.''
But two attorneys who specialize in labor law disagree on how hard it will be to prove that.
"The first thing I'm going to tell any employer to do is take a close look at their existing written policies regarding drug and alcohol use in the workplace,'' said attorney Don Johnsen. "We want to make sure the policies reflect the changes in law so the employer is not viewed as going farther than what the law allows.''
That goes directly to the question of policy of testing workers, whether at random or following an accident.
"If the positive drug test is of a person who's a cardholder, the law has a presumption that the marijuana use was for medical purposes, not recreational,'' said attorney David Selden.
That, then, presents a new hurdle for a company which wants to fire a worker. Selden said that will require proving impairment.
"One of the most common ways is through symptoms,'' he said, "a delayed reaction, a lack of perception, loss of energy, bloodshot eyes, dilated pupils -- those kinds of things that people remember from college,'' Selden said.
"It's turning employers into the equivalent of a field sobriety test,'' he continued. "There is a not a scientific measurement of impairment the way there is for alcohol.''
With alcohol, for example, there are specific measurements: A blood-alcohol content of 0.08 is considered presumption of intoxication under state driving laws.
Not only is there is no numerical standard for marijuana, Selden said the test used doesn't even measure current impairment. He said a worker who has used marijuana weeks earlier still can test positive.
Johnsen, however, said he believes employers can take a much more hard-line approach to rid their companies of workers who test positive, including those with the medical marijuana cards. He said that, as far as he's concerned, any worker with any amount of marijuana in his or her system could be considered "impaired.''
"We know from physical testing that people are actually impaired by their use of marijuana for days after they actually use it,'' he said. Johnsen said there is scientific data which measures things like agility.
One 1985 study at Stanford University allowed airline pilots to smoke low-grade marijuana and then put them into flight simulators. That resulted in numerous "crashes.''
But the real key, said Johnsen, is that they got back in the simulator a day later and still crashed the planes.
"And it was pretty clear the reason they were crashing was because they were impaired, they were influenced by the marijuana that was still in their system,'' he said.
Johnsen said a company that works with a pharmacologist or other scientific expert on the effects of marijuana will be able to justify firing a worker based on impairment.
Selden, however, said he would not advise companies to fire a card-carrying worker based solely on a positive test.
"Employers are going to have to train people who are supervisors in safety-sensitive jobs to tell what the symptoms are and to observe their employees for signs,'' he said. That means going through procedures to ensure a worker is alert and oriented.
Selden said the need for that goes beyond identifying and firing an impaired worker without being sued by that employee. He said a company faces possible lawsuits if it doesn't find that worker.
"Under Occupational Safety and Health Administration (rules) there's a duty to provide a workplace free of recognized hazards that could cause serious injury,'' Selden said.
That anti-impairment requirement of Proposition 203 applies across the board, and not just to those who are running equipment or doing other potentially dangerous tasks.
"But I don't think employers are going to be going around and looking into everybody's eyeballs and checking them out in the morning,'' he said.
Selden said there's one other danger for employers in the new law: the possibility that someone who has a medical marijuana card -- and the company knows about it -- claiming they are being subject to closer monitoring than coworkers.
There aren't a lot of legal precedents for Arizona employers to follow in figuring out how to deal with the law. That's because the medical marijuana laws previously enacted in most states do not have the workplace immunity provision.
It was problems that developed for workers elsewhere which caused the sponsors of the Arizona measure to add the language.
One of the most noted cases involves a former Wal-Mart worker in Michigan who obtained a medical marijuana card under that state's laws to deal with the pain from sinus cancer and a brain tumor.
Joseph Casias said it never was an issue until he sprained his knee at work and, pursuant to company policy, had to take a drug test. He said company officials fired him for the positive test, saying nothing in the Michigan law requires the firm to honor the marijuana cards.
Despite the lack of an anti-discrimination provision, Casias filed suit against Wal-Mart earlier this month in federal court saying he was wrongfully terminated.
malcolmkyle posted at 5:01 am on Fri, Nov 19, 2010.
It's time for us all to stop being ignorant hypocrites and start being TRUE conservatives!
Pragmatic libertarians (minimal-statists) and "true" Conservatives agree that many, if not most, of society's problems are caused by government usurping choices that could better be made by individuals and that government is just about the worst way of doing almost anything. Where libertarianism normally parts company with "fake" conservatism is over moral issues. But a true conservative would have no problem with agreeing, that what people do with their own bodies, and especially in the privacy of their own home, should be supremely their business, and that anything else would entail ignoring the basic tenet of limited government.
Fake-Conservatism on the other hand has much in common with socialism; Both Leftists and Fake-Conservatives appear to harbor the belief that nature does not exist and that any human can be anything he wants to be, or can for the "greater good", be "re-educated" into being. Leftists therefore think little boys can be conditioned into preferring dolls over toy soldiers, and similarly Fake-conservatives believe that adults can be coerced into choosing alcohol over marijuana. A true conservative, just like a pragmatic libertarian, would immediately reject both ideas as nonsense.
If you support prohibition then you are NOT a conservative.
Conservative principles, quite clearly, ARE:
1) Limited, locally controlled government.
2) Individual liberty coupled with personal responsibility.
3) Free enterprise.
4) A strong national defense.
5) Fiscal responsibility.
Prohibition is actually an authoritarian War on the Constitution and all civic institutions of our great nation.
It's all about the market and cost/benefit analysis. Whether any particular drug is good, bad, or otherwise is irrelevant! As long as there is demand for any mind altering substance, there will be supply; the end! The only affect prohibiting it has is to drive the price up, increase the costs and profits, and where there is illegal profit to be made criminals and terrorists thrive.
The cost of criminalizing citizens who are using substances no more harmful than similar things that are perfectly legal like alcohol and tobacco, is not only hypocritical and futile, but also simply not worth the incredible damage it does.
Afghani farmers produce approx. 93% of the world's opium which is then, mostly, refined into street heroin then smuggled throughout Eastern and Western Europe.
Both the Taliban and the terrorists of al Qaeda derive their main income from the prohibition-inflated value of this very easily grown crop, which means that Prohibition is the "Goose that laid the golden egg" and the lifeblood of terrorists as well as drug cartels. Only those opposed, or willing to ignore this fact, want things the way they are.
See: How opium profits the Taliban: http://tinyurl.com/37mr86k
or: A GLOBAL OVERVIEW OF NARCOTICS-FUNDED TERRORIST GROUPS
http://www.loc.gov/rr/frd/pdf-files/NarcsFundedTerrs_Extrems.pdf
Prohibition provides America's sworn enemies with financial "aid" and tactical "comforts". The Constitution of the United States of America defines treason as:
"Article III / Section 3. Treason against the United States, shall consist only in levying war against them, or adhering to their enemies, giving them aid and comfort."
Support for prohibition is therefor an act of treason against the Constitution, and a dire threat to the nation's civic institutions.
The Founding Fathers were not social conservatives who believed that citizens should be subordinate to any particular narrow religious moral order. That is what the whole concept of unalienable individual rights means, and sumptuary laws, especially in the form of prohibition, were something they continually warned about.
It’s time for us all to wise up and help curtail the dangerous expansions of federal police powers, the encroachments on individual liberties, and the increasing government expenditure devoted to enforcing the unworkable and dangerous policy of drug prohibition.
To support prohibition you have to be either a socialist, ignorant, stupid, brainwashed, insane or corrupt.
* The US national debt has increased at an average rate of $3,000,000000 per day since 2006. http://www.usdebtclock.org/
* The unemployment rate has increased by 7300 per day since 2008.
* The loss of manufacturing jobs has been 1400 per day since 2006.
* Without the legalized regulation of opium products Afghanistan will continue to be a bottomless pit in which to throw countless billions of tax dollars and wasted American lives.
* The hopeless situation in Afghanistan is helping to destabilize it's neighbor, Pakistan, which is a country with nuclear weapons.
* The mayhem in Mexico has deteriorated so badly that it’s bordering on farcical.
There is nothing conservative about prohibition, which enlists the most centralized state power in displacement of domestic and community roles. There is everything authoritarian and subversive about this policy which has incinerated American traditions such as Freedom and Federalism with its puritanical flames. Any person seeking to insure and not further compromise the safety of their family and of their neighbors must not only repudiate prohibition but help spearhead its abolition.
We will always have adults who are too immature to responsibly deal with tobacco alcohol, heroin amphetamines, cocaine, various prescription drugs and even food. Our answer to them should always be: "Get a Nanny, and stop turning the government into one for the rest of us!"
soricobob posted at 6:06 am on Fri, Nov 19, 2010.
These same employers might have been worried about what to do when prohibition was repealed.
PeacefulCat posted at 7:15 am on Fri, Nov 19, 2010.
Mr. Johnsen there are a lot of Recent studies that blow a hole in your idea that marijuana impairs and for days.
Enough with the "Hemp Hoax" go with the real science and studies
One more scare tactic to try to undo this law.
Shame on Mr. Johnsen.
snowiesmom posted at 10:05 am on Fri, Nov 19, 2010.
I am a democrat with fibromyalgia and dejenerative joint disorder. I suffer in horrible chronic pain, yet I still feel that this law does nothing more than open the door to a mass of problems. Not only in the inability to truly regulate it's legal but proper use. I am certain that this will merely make it easier for children to attain the drug, as well as "dirty doctors" to sell the 'scripts and cards rather than prescribe responsibly. Granted I do NOT believe that many doctors will do this, but one bad one is all it takes to undermine the usefulness of the drug for proper medical use. Monitered and used properly, I believe that the potential benefits outweigh the risks, but I am personally unwilling to tollerate exposure to the drug.
Due to an extreme and rare allergy to the odor of marajuana, I find this law to be lacking in proper monitoring of the locations of it's use. What are the lawmakers going to do to protect people like me???
i3aggz posted at 10:55 am on Fri, Nov 19, 2010.
so these so called employers that are going to have a difficult time with an employee who can legally use, dont you think that said employee(s) were using prior to it being legal? and tell me what kind of companies are these that dont require a drug test prior to being employed? odds are it would have shown up then, if tested. if not tested, why the hell start testing now?
isnt there bigger issues in the world? hell for that fact our own state? some like it some dont like it, no one is gonna ever be happy with what is done out there, but just go and find a more worthy and rewarded topic to fight/pick on.
and no i am not one that is in favor of this nor am i against it. i think the last time i took a toke was over 25 yrs ago. there are more serious things to fight for or against, yet you want to harp on something that the people voted in. good for the people and even better for the ones that this will assist in the correct way.
TruthSeeker posted at 6:30 pm on Fri, Nov 19, 2010.
If these employers are experiencing headaches, perhaps they should get a "medical" marijuana card, too. If they, too, are drugged, they will no longer care about much of anything.
AZMomma posted at 6:42 am on Sat, Nov 20, 2010.
If an employee is suffering a medical condition so severe that it requires ANY controlled substance to alleviate it - remove them from working with anything where impairment could be an issue.
If I take Oxy, allergy meds, even insulin, I might be impaired at any given time. Do you want me around your vehicles, punch press or climbing ladders? Traveling for your Company?
It is NOT discrimination to move the employee to another safe job assignment. Suggest you talk to your corporate attorney on this.
If you need this type of amelioration, you are already an IMPAIRED WORKER, at risk to yourself and your employer. . In that case, stop whining and chose between a job or taking meds necessary to control your condition. Life isn't always "Nice" and you have no more rights than those granted to any other person.
DeFace posted at 11:33 am on Sat, Nov 20, 2010.
I have worked at Fortune 500 companies for over 15 years. I had subordinates coming in whacked out on Oxycontin and all kinds of pharmaceuticals, bringing it up to the hierarchy I was told to assign them a light schedule for that day. My supervisors would go out to 2 hour martini lunches and come back smelling like a distillery. The fact is, whatever the corporate culture is at a company, the same rules they use for employees whacked out on pharmaceuticals could apply to marijuana users. I am not sure what headache they are talking about with employers, unless it is the one that followed a day of golf and liquor.
DeFace posted at 12:01 pm on Sat, Nov 20, 2010.
Beware of false and misleading studies.
Other widely quoted studies have even larger margins of error -- but you wouldn't know that by listening to the people who quote them.
"Marijuana does not wear off in a couple of hours," said Rosanna Creighton, president of the nonpartisan lobbying group "Citizens for a Drug-free Oregon."
"The pleasure high is gone, but the effect it has ... on motor skills, eye-to-hand coordination, peripheral vision ... is not gone. A Stanford University study showed that 24 hours after smoking marijuana, the ability of airplane pilots was impaired."
Creighton was referring to a 1985 study paid for by the National Institute on Drug Abuse and the Veterans Administration Medical Research Service. It has been used to show that even casual marijuana use is dangerous -- despite many government studies that have concluded the opposite. ...
The study said that although the pilots were unaware they were impaired, their marijuana-induced errors could easily lead to airplane crashes.
But a co-author of the study is not confident of those findings.
"The results of the study were suggestive, non conclusive," said Dr. Von Otto Leirer, an experimental psychologist. "We didn't have the appropriate controls for the experiment. That was a real serious problem."
Leirer said a follow-up study, using the proper controls and methods, was conducted. That study was published in December, but attracted little notice. ...
In the past 20 years, studies have shown marijuana to cause brain damage, paranoia, early senility, heart malfunction and sexual problems, Grinspoon said. In every case, he said, follow-up studies failed to confirm that marijuana caused any of those problems.
cb_mesa posted at 9:26 am on Sun, Nov 21, 2010.
One thing that has not been mentioned is the effect on hotels that still have 'smoking rooms' meaning that they have not gone completely non smoking, I recently was in montana at a hotel and i could smell the pot throughout the hotel, as there must have been someone that had a prescription.
Notoriouskelly posted at 3:45 am on Wed, Nov 24, 2010.
Drug testing is fascist and unconstitutional.
And employers shouldn't be allowed to check credit scores, either.
hillstreet posted at 10:55 am on Tue, Dec 14, 2010.
just anoter excuse to get high. The rest is just noise.
lwolfe posted at 12:51 pm on Thu, Dec 16, 2010.
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