May 2019 Volume 1

SAFETY

State Laws on Medical and Recreational Use Marijuana from Safety.BLR.com

Marijuana has been approved for both recreational and medicinal use in an ever-growing number of states. Employers in states with medical and/or recreational marijuana laws can still prohibit the use of marijuana in the workplace. Furthermore, employers that have “zero tolerance” workplace substance abuse policies can continue to rely on the fact that marijuana is illegal under the federal Controlled Substances Act, even if individuals using marijuana may be released of criminal liability under certain states’ laws. However, these state laws may continue to pose accommodation issues under state disability discrimination statutes for use outside theworkplace. The U.S. Supreme Court has upheld the power of the federal government to seize and destroy medical marijuana under the federal Controlled Substances Act (Gonzalez v. Rich, 124 S.Ct. 2909 (2005)). The Court’s decision does not overturn any state medical marijuana law. However, even in those states, individuals may be prosecuted for growing or using medical marijuana in violation of federal law. In fact, the 9th Circuit Court of Appeals has held that because the use of medical marijuana remains illegal under federal law, theADAdoes not protect against discrimination on the basis of medical marijuana use, even if that use is in accordance with state law explicitly authorizing such use (James v. City of Costa Mesa, 700 F.3d 394 (9thCir. Cal. 2012)). Notwithstanding the legalization of marijuana use in individual states, employers continue to have the

right to insist that employees remain drug-free while at work, that they do not bring illegal (or non prescribed) drugs or alcohol to work, or use substances while on the job. Furthermore, a positive drug screen continues to be valid grounds for an adverse employment action if it is pursuant to an established policy. Employers that adopt a zero tolerance policy must make sure that they do not inquire about an employee’sdisability intheevent that the employee discloses the use of, or tests positive for, medical marijuana (EEOC v. Pines of Clarkston, Inc., No. 13-CV-14076 (E.D. Mich., Apr. 29, 2014)). Rise in Marijuana and Opioid UseAffecting Employers The use and misuse of both illicit and prescription drugs are affecting a growing number of employers. Whether marijuana or opiates are obtained legally or illegally, both are present in the workplace. An increasing number of workers are even dying on the job from drug and alcohol overdoses. The most acute hazards are faced by firefighters, police officers, and other emergency responders, as well as cleanup workers. These issues have been fueled by a number of developments: • Several states have enacted laws allowing recreational use of marijuana in addition to existing laws recognizingmedical uses of marijuana, • Physicians have prescribed opioid painkillers for work related and non-work-related

injuries, and • As some individuals became dependent on or misused these prescription painkillers, they switched to illicit opioids. These have led to four key problems: • Health and safety hazards in the growing, processing, and retail sale of marijuana, • Worker impairment from marijuana and opioid use, • Overdoses and deaths in the workplace, and • Health hazards faced by emergency responders and law enforcement officers encountering synthetic opioids like fentanyl. Marijuana UseGrowing Marijuana was the most commonly detected substance in worker drug tests, according to Quest Diagnostics, a company that tests workers’ urine samples for employers and performs patient blood, urine, and other diagnostic tests for healthcare providers. Quest reported that positive results for marijuana increased by more than 33%between 2015 and 2017. Over half of medical marijuana users reported driving while “a little high,” according to University of Michigan researchers. They found that 56% of the users surveyed reported driving within two hours after using marijuana, 51% reported driving while “a little high,” and 21% reported drivingwhile “very high.” With more states enacting laws approving medical or recreational

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