MEDICAL MARIJUANA AND THE TRANSPORTATION WORKPLACE
Colorado – crystal clear
Employers are allowed to regulate or prohibit the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace. Employers may also enact policies restricting the use of marijuana by employees. Simple. No need to drag in DOT issues. Clear-headed.
Nevada – oddly sensible, but it’s complicated by reasonable accommodation.
Nevada Revised Statutes 453A.800. Costs of medical use of marijuana is not required to be paid or reimbursed; medical use of marijuana not required to be allowed in workplace; medical needs of employee who engages in medical use of marijuana to be accommodated by employer in certain circumstances. The provisions of this law do not: 1. Require an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana. 2. Require any employer to allow the medical use of marijuana in the workplace. 3. Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not: (a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or (b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.
California – typical psychosis.
A tortured, psychotic path in California now suggests a concern when the employee explains positive test results by mentioning a medical condition that led to the marijuana use.
The employer can still choose not to hire the applicant, or to fire the employee.
But the decision would be the least risky when the employer applies a zero tolerance policy for marijuana use across the board, and when the position is safety-sensitive (like operating machinery or DOT safety related). The decision is to be made only on the drug test results, and not on the underlying medical condition.
But, if an applicant for an office job fails a drug test due to off-duty medical marijuana treatment for cancer, the employer may decide to hire anyway.
Arizona – hazy – with a chance of general legalization.
The Arizona Medical Marijuana Act (“AMMA”) already prohibits employers from discriminating against individuals who are authorized to use medical marijuana. The principal exception to this prohibition applies if the hiring or retention of a medical marijuana user would cause the employer to lose a monetary or license-related federal benefit, e.g., hampering your FMCSA authority via workers in safety-related functions.
Employers may certainly test employees and applicants for marijuana and other controlled substances, but the AMMA protects authorized medical marijuana users testing positive for marijuana from adverse employment action based solely on the test results.
Arizona employers can discipline an employee with a positive test even if the employee is authorized to use medical marijuana, but only if there is additional objective evidence of possession or impairment during working hours. Where it gets even hazier is the evidence of workplace impairment: a workplace incident reflecting negligence, obvious signs of intoxication: decreased coordination, slurred speech, blood shot eyes, and/or empty bags of Cheetos (jk).
As some of us may know from Cheech and Chong movies, off-duty usage effects can linger into the workday. The fact that an employee’s off-duty use of medical marijuana may be protected by Arizona state law does not alter the fact that such use may have adverse results and occasionally may cause an injury. This clouds the challenge for employers: Hmmm…does evidence of workplace intoxication, despite the employee having a medical marijuana card mean the employee goes home until the fog clears? No clear answer. Legislature was too busy lining up to sue Feds for clarification of who gets to use which bathroom.