Medical Marijuana: At Work, a Drug Dilemma

LIFE & STYLE
AUGUST 3, 2010

By STEPHANIE SIMON

An employee recently approached Josh Ward, an executive at a Denver plumbing company, with a question he never thought he'd hear.

Her husband, the employee said, is a state-registered medical marijuana patient. Could she buy his marijuana with her company-provided flexible spending account?

"We were like, 'Whoa!'" Mr. Ward said.

Mr. Ward did a bit of research and quickly told the employee no. Her account, funded with pretax dollars, is regulated by the Internal Revenue Service and cannot be used to purchase a drug that's illegal under federal statutes, even if Colorado treats it as a legitimate medication.

The employee, whom the firm would not make available for comment, didn't press it, Mr. Ward said. Still, the issue made him uneasy. "It's a big can of worms," said Mr. Ward, vice president of Applewood Plumbing, Heating & Electric.

Employers from coast to coast are facing similar dilemmas. Many are closely watching a pending lawsuit against Wal-Mart Stores Inc. in Michigan. An employee who used medical marijuana was fired by the retailer after a positive drug test on the job.

Fourteen states and the District of Columbia have laws or constitutional amendments that allow patients with certain medical conditions such as cancer, glaucoma or chronic pain, to use marijuana without fear of prosecution. The Obama administration has directed federal prosecutors not to bring criminal charges against marijuana users who follow their states' laws.

But that can put employers in a difficult position, trying to accommodate state laws on medical marijuana use while at times having to enforce federal rules or company drug-use policies that are based on federal law.

"It's certainly an issue that's coming up regularly," said Danielle Urban, an attorney with Fisher & Phillips, a national labor and employment law firm. "Employers are between a rock and a hard place."

The federal government lists marijuana as a Schedule I drug on par with LSD or synthetic heroin. Employers can fire, or refuse to hire, employees for using the drug without running afoul of the Americans with Disabilities Act or any other federal anti-discrimination statute, said Christopher Kuczynski, assistant legal counsel with the U.S. Equal Employment Opportunity Commission.

State laws vary considerably. The state Supreme Courts in Oregon, California and Montana and the Washington Court of Appeals have all ruled that employers have a right to fire medical-marijuana patients for using the drug. The medical-marijuana laws in Rhode Island and Maine state that most employers may not penalize individuals solely because of their status as marijuana patients.

In Michigan, the law states that registered patients shall not be "denied any right or privilege" or face disciplinary action at work because they use pot. The only exception: Employers do have the right to terminate workers who use marijuana on site or come to work high.

But determining if a worker is impaired on the job can be difficult.

Sean Short, a 25-year-old college student, was injured last fall while taking pictures of skiers in Breckenridge, Colo., for his employer, an event photographer. Mr. Short says that, at the time, he was using marijuana in compliance with Colorado law to ease pain from a back injury.

He sayshe was not high when a skier smashed into him on the job, fracturing his shoulder. Mr. Short says he was required by his employer to take a urine drug screen after the accident. He flunked. He then gave managers his medical-marijuana card. "They said, 'Sorry, we're terminating you,"' Mr. Short said.

His employer did not return calls seeking comment.

Mr. Short says he's now reluctant to apply for any job requiring a drug test. "I can have a college degree. I can be well-spoken and intelligent," he said. "But as long as I'm a 'druggie,' I'm going to be discriminated against."

Sophisticated tests can measure the amount of THC, the active ingredient in marijuana, in blood samples taken within four to six hours of ingestion. Users are generally considered high at a level of five nanograms of THC per milliliter of blood, said Robert Lantz, director of Rocky Mountain Instrumental Laboratories, a drug-testing facility in Fort Collins, Colo.

Such precise tests require expensive instruments. Dr. Lantz's lab charges $450 for a single blood test; his bulk discount rate is $200 per test. Many employers use far cheaper, less sensitive urine screens. At OnSite Medical Testing, a lab in Greenwood Village, Colo., a basic urine test costs $35, or $25 for bulk clients.

The typical urine screen can detect the presence of metabolized THC compounds, but can't determine when the marijuana was ingested or in what quantities, Dr. Lantz said.

Advocates of legalized marijuana say they would never insist that workers be allowed to use the drug on duty. "No one thinks you should be able to get stoned and go to work, obviously," said Keith Stroup, legal counsel for the national advocacy group NORML. Still, Mr. Stroup argues that, absent clear signs of impairment, employers should trust workers who have valid medical-marijuana-registration cards to take the drug responsibly.

Too dangerous, some employers say. At Hoffman Construction Co. in Portland, Ore., cannabis has been implicated more than any other drug in workplace accidents resulting in injury or property damage, said Dan Harmon, a vice president.

Any move to permit off-duty drug use raises "real safety concerns," Mr. Harmon said. His firm doesn't accept medical-marijuana cards, he said. To do so would be "disastrous."

Employers and medical-marijuana patients are hoping the Michigan lawsuit can bring some clarity to the situation.

Joseph Casias, who says he uses medical marijuana to ease pain from an inoperable brain tumor, sued Wal-Mart in a state court in June, saying the retailer was wrong to fire him from his job as an inventory manager in Battle Creek, Mich., after he tested positive for marijuana.

Mr. Casias, who is represented by the American Civil Liberties Union, says he uses cannabis on his oncologist's advice and in compliance with Michigan law. The 30-year-old father of two says he takes the drug at night and has never come to work high. But last November, he failed a drug test that was administered as a matter of company policy after he twisted his knee on the job.

A Wal-Mart spokesman called the case "unfortunate" and the decision to fire Mr. Casias "difficult." But, he said: "As more states allow this treatment, employers are left without any guidelines except the federal standard. In these cases, until further guidance is available, we will always default to what we believe is the safest environment for our associates and customers."

Write to Stephanie Simon at stephanie.simon@wsj.com

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