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The rights of your pot-smoking co-workers


medical marijuanaWhat workers do on their own time has traditionally been ignored by employers. As long as you show up for work and perform your job, many employers take a “don't ask, don't tell" approach, up to certain point.

If an employee shows up to work with red eyes, a glazed look and reeking of marijuana, most employers will probably start filling out termination paperwork. But what happens if this employee has a prescription for medical marijuana?

Pot is now legal, in varying degrees, in 14 states and the District of Columbia. California led the way in 1996 when it allowed the drug to be prescribed for use as a painkiller from certain conditions such as glaucoma, cancer and other illnesses that cause debilitating pain or nausea. But the federal government has yet to decriminalize the drug for use in any capacity. So while medical professionals, lawyers and marijuana supporters square off in the debate over the efficacy of the drug as a medicinal option, employers have been left to wander in a hazy landscape of liability, insurance coverage and workplace protections pretty much alone.

"It's very all-across-the-board. The key to the whole debate is the difference between federal law and state law," says Seth Brickman, a senior underwriter of employment practices liability insurance for Business Risk Partners in Connecticut. He observes that the Bush administration funneled effort into federal law against marijuana use and encouraged raids on dispensaries.

In 2009, however, the Obama administration issued a statement pledging, "It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana."

So the federal government is not aggressively prosecuting state-sanction dispensaries or dispensary customers, but the laws in each state are still open to interpretation.

Employers look for answers -- and insurance

States where medical marijuana is legal

  1. Alaska
  2. California
  3. Colorado
  4. District of Columbia
  5. Hawaii
  6. Maine
  7. Michigan
  8. Montana
  9. Nevada
  10. New Jersey
  11. New Mexico
  12. Oregon
  13. Rhode Island
  14. Vermont
  15. Washington

When faced with a stoned worker, employers face many uncertainties. If the workplace requires drug testing, is it legal to drug test medical marijuana patients? Can the employee be fired for being under the influence of a prescribed medication? Could an employer be sued if it fires a worker for failing a drug test when they have a legal prescription? Unfortunately, the answers aren't clear-cut on how to manage these concerns.

"There's a fair likelihood that this individual has a disability ... otherwise they wouldn't have [medical marijuana] prescribed," says Eric Schneider, a managing partner at the law firm of Anderson, McPharlin & Conners in Los Angeles.

Firing an employee with a disability amounts to discrimination under the American with Disabilities Act, but even that allows for certain ambiguity, Schneider says. Employers must meet with disabled employees "in an interactive process” to discuss how to best accommodate their disabilities.

"The employer's obligation is to be reasonable," Schneider says. "But what reasonable is anyone's guess. There's also no clear definition on what the interactive process is."

Employment practices liability insurance (EPLI) has long been used by employers to help deal with allegations of wrongful termination, discrimination and other employee-driven lawsuits or claims. Now EPLI policies are on the forefront of the explosion of medical marijuana usage.

Having EPLI doesn't guarantee an employer will prevail if sued by an employee terminated for use of medical marijuana, but Brickman notes, "It's the insurer’s job to step up and provide the defense for the insured in the case of wrongful termination." Rarely do cases involve just wrongful termination, but a combination of discrimination against medical needs, or violation of the ADA."

"I recommend it if you're in a state that has medical marijuana approved. Carry the coverage, and let the carrier make the determination. You might get your defense covered," Brickman says.

While business insurance can cover your defense and settlement, health insurance won’t cover the marijuana prescription that sets off the chain of events.

Know your state law

medical marijuana

Along with buying EPLI, employers should know what the state and federal laws are regarding medical marijuana. While a 2008 California Supreme Court ruling offered some clear guidelines, such as the legality of drug testing, firing an employee for use of medical marijuana was not tantamount to discrimination, and employers have no obligation to accommodate medical marijuana use, even if the worker is smoking pot outside work hours.

"It's very unclear for employers," Brickman says. "Montana is a state whose laws specifically state penalizing in any way is prohibited. Arizona requires employers to accommodate use in the workplace. Maine says no use in the workplace. And what do you do when you have Oregon, where it's cleared and you can use it, but the company works across state lines in Idaho?" And can you ask a candidate in a job interview whether he uses medical marijuana, in states where it’s legalized?

It’s clear the battle over states’ rights versus federal law will continue unless the federal government makes marijuana legal.

"Some states do provide some rights to employees. But even in states where it is legal, being that the federal government and EEOC have taken a position against it, I just don't see state law preempting the federal position," Brickman says.

Attorney Schneider finds the opposing laws confusing, too.

"I don't understand how something can be legal in California and illegal in the federal government," he says.

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