Medical marijuana is casting a cloud of confusion over Corporate America.
Pot is legal in 14 states as a prescription painkiller, leaving employers struggling to reconcile zero-tolerance drug policies with a patient's right to get high.
Human resources managers are grappling with such questions as whether random drug tests constitute discrimination under the Americans with Disabilities Act, what they are legally allowed to ask job candidates and whether they are required to accommodate after-hours and offsite use of medical marijuana.
"It's throwing employers for a loop," says Alison Holcomb, an attorney for the American Civil Liberties Union in Washington, D.C.
That's because many companies have policies that require an employee who tests positive for THC, or Tetrahydrocannabinol (the active ingredient in pot) to be terminated or to participate in some sort of treatment program, even if it's not necessary, she says.
Companies that receive federal contracts are required to prohibit the use of marijuana as a condition of participation under the Drug-Free Workplace Act of 1988. The federal Department of Transportation also issued new guidelines last year that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs, including pilots, school bus drivers, truck drivers, subway operators and transit armed security, even in states where it is legal.
"It really boils down to this: An employer's right to maintain a drug-free workplace is critical," says Denise Davis, a spokeswoman for the California Chamber of Commerce. "It protects the safety of all workers and limits exposure to potentially costly litigation."
Where does that leave employers and employees?
The law: A moving target
The landmark 2008 Supreme Court ruling in California, involving a systems administrator who was fired for using medical marijuana by Sacramento-based RagingWire Telecommunication (now known as RagingWire Enterprise Solutions) offers the most definitive guidance for employers so far. The court ruled that:
*Drug testing in the state was legal.
*Firing an employee for use of medical marijuana was not tantamount to discrimination.
*Employers are not obligated to accommodate the use of medical marijuana, even outside work.
In other words, while the state's medical marijuana laws protect patients from criminal prosecution, it provides no protection on the job. Pot remains classified as an illegal substance under federal law.
"The California Supreme Court gave carte blanche for employers to discriminate against medical marijuana patients," says Joe Elford, legal counsel for Americans for Safe Access, an advocacy group.
But the door remains open for less rigid interpretation. Currently, seven states that allow medical marijuana have implicit employee protections in place; the law mentions only on-the-job consumption or impairment as grounds for termination. Those are: Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont. Two others, Rhode Island and Maine, have explicit protections for medical marijuana patients written into their legislation.
None has been tested in court.
Legal challenges are underway
The Washington state Supreme Court has agreed to review a case in which a customer service consultant was fired for her legal, at-home use of marijuana.
"We're arguing that firing that patient is a violation of public policy, because it enters the employer into the confidential physician-patient relationship," says the ACLU's Holcomb.
Earlier this year, retail giant Wal-Mart fired a worker in Michigan for using cannabis to alleviate pain related to sinus cancer. The employee claims he never came to work high, but was fired after being tested for drugs.
Human resources departments should tread carefully, contact their legal counsel and adhere to both federal and state laws regarding the use of pot, Holcomb says.
"What I hope is that we'll recognize we don't want to force very ill people to decide they can't avail themselves of this physician-authorized treatment because they can't afford to lose their job," she says. "That's just bad policy, and I don't think most employers want to support that."
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