Jump to content

Medical Marijuana Law Opens Up Policy Pitfalls


Recommended Posts

Michigan voters' passage of a 2008 provision legalizing the use of medical marijuana opened a pitfall-strewn path for the state's small-business owners.

 

The statute says employers aren't required to accommodate the ingestion of marijuana or anyone working under the influence of the drug.

 

But another, seemingly contradictory, provision regarding protection of patients says legal users of medical marijuana aren't subject to arrest or prosecution and can't be subject to discipline or punishment by a business, said William Vertes, a principal at Detroit-based The Kitch Firm and leader of its medical marijuana practice.

 

“There are a lot of gaps in the statute, and it hasn't worked its way through the courts yet,” he said. “So employers are left in a difficult position.”

 

In Battle Creek, a Walmart employee with cancer was fired for medical marijuana use after failing a work-required drug test. The case, which is in court, will likely become a benchmark legal decision.

 

Ultimately, interpretation of the law as it relates to employers likely will hinge on two words, “accommodate” and “influence,” he said. And what “accommodate” really means is yet to be determined.

 

One interpretation, Vertes said, is that employers don't have to accommodate the ingestion of marijuana in the workplace by setting up smoking rooms or allowing smoking breaks.

 

“Certainly employers don't have to have an employee working under the influence ... but since we don't have a general standard for what "under the influence' means, we are forcing employers to do something even police can't do.”

 

There's no objective test, like those used to determine drunkenness, that determines whether a person is intoxicated from the use of marijuana, he said.

 

Federal law still bans all use of marijuana, he said. “So there's ample provision for employers to say, "We've got a zero-tolerance workplace, and if you test positive for it, too bad.' “

 

“But the problem for employers, and why it has them tied in knots is: It's not if you're going to get sued, it's by whom are you going to get sued. If you turn a blind eye, you're essentially aiding and abetting in a federal crime, and you have a potential liability to a customer who gets injured and says, "Of course I got injured, your medicated Hi-Lo driver ran right into my car.' But if you fire an employee, then you could have a guy like the guy at Walmart who says "You can't fire me, I'm not violating Michigan law.' ”

 

For a small-business owner, defending such litigation can become costly. But some risk can be mitigated if there's a policy in place, Vertes said.

 

“If you don't, you're leaving yourself open to later interpretations of the law or accusations of discrimination if you're only coming up with a policy after the fact,” he said.

 

Standards can shift by industry, Vertes said. For example, the statute bars employees using medical marijuana from operating motor vehicles, and a business that relies on employees to drive can restrict medical marijuana users from performing those duties.

 

But there's another complication — use of medical marijuana is protected, private medical information, and employees aren't required to disclose usage, Vertes said.

 

The safest route for employers, Vertes said, is to focus on job performance rather than use. That's the standard when it comes to other prescription pain medications.

 

Vertes said that while an employer can have a policy that allows for discipline of employees who are unable to fulfill their job requirements, it's better to base such a policy on objective job performance standards rather than drug test results or use of a substance.

 

It's important to understand the way medical marijuana patients use the substance, said Michael Komorn of Southfield-based Komorn Law.

 

“Sometimes people take their Vicodin and go to their labor jobs because they need the Vicodin in order to be loose and free of pain,” he said. “Many people are able to function in a non-impaired way when they're medicated.

 

“This is a medicine; (it) shouldn't be considered an alcohol or an illicit drug that people use to get high.” Bottom line, Vertes said, is to be aware of the law and its implications.

 

“All small businesses have got to analyze the statute, and if they have questions they have to talk to attorneys and be up on the law because this law is changing week by week if not day by day,” he said.

 

“You've got to carefully draft policies that fit your business and comply with both aspects to the extent possible.”

 

Nancy Kaffer: (313) 446-0412, nkaffer@crain.com.

Link to comment
Share on other sites

"The statute says employers aren't required to accommodate the ingestion of marijuana or anyone working under the influence of the drug.

 

But another, seemingly contradictory, provision regarding protection of patients says legal users of medical marijuana aren't subject to arrest or prosecution and can't be subject to discipline or punishment by a business, said William Vertes, a principal at Detroit-based The Kitch Firm and leader of its medical marijuana practice."

 

This is not what the laws reads. Section 7 © states that nothing in this act shall be construed to require: (2) an employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.- so you can't be high on the job (nor can you be drunk), and there will not be a special smoker lounge or lunch room.

 

Section 4 (2) (i) actually reads that a person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana. This does not mean that your job is protected, but that your business or occupational or professional license is protected should you be in the area, or assist a patient in their use.

 

I don't see a contradiction. One statement tells us that a marihuana user will get no more that what a person who consumes alcohol gets. The other tells us that the special license we earned and/or paid for will not be lost because we gave aid. Much like saying that a 1st responder cannot be sued.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
 Share



×
×
  • Create New...