As Seen in the
Portland Press Herald
March 8
Your Business: New Maine pot law
clouds rules on drug use
By RICK DACRI
 If
one of your employees failed a drug screen, what would you do?
If you're like most employers, you have clear
procedures on how to respond, particularly if you fall under federal
guidelines.
Now, what would you do if that same employee
suddenly flashes a registry identification card issued to him under
Maine's new medical marijuana law? Do you follow the same procedures?
Maine's new law is about to change all the rules
on drugs in the workplace. Many of the personnel procedures that
businesses have in place just went up in smoke with the new law.
CONSISTENCY IS KEY
Now an employee who is a "qualifying patient" and
who has been issued a registry identification card is protected against
disciplinary action for the use of medical marijuana.
In addition, employers cannot refuse to hire and
cannot penalize someone just because they are registered as a
qualifying patient.
So what are employers supposed to do? Is it now
acceptable to come to work stoned?
Well, there is a lot more that we don't know about
the new law than we do, but the short answer is, the law does not
permit a person to perform any task while under the influence, and that
includes operating a motor vehicle.
So let's look at what we know about the law.
To begin, the law does not require an employer to
allow the use of a drug at work or permit an employee to work under the
influence. While it may be difficult for a manager to prove that an
employee is impaired, employers can still demand that employees are
fully able to work before they report to work.
When faced with an employee you believe is
impaired and under the influence, document your findings, focus on
observable behavior and unless you're a medical doctor, don't diagnose.
In fact, even if you are a doctor, you might want to refrain in this
case, too.
Treat the use of medical marijuana in the same
manner that you would deal with other prescribed medications that would
impair an employee's ability to safely do the job -- particularly when
operating dangerous equipment. Consistency is the key.
ILLEGAL UNDER FEDERAL LAW
While Maine law allows the use of medical
marijuana, it is still illegal under federal law. As a result,
employers will have to deal with employee situations differently,
particularly when faced with federal government mandates.
As an example, employers who fall under federal
guidelines, such as the federal Department of Transportation rules,
must still follow their rules including the testing mandates. As a
result, any worker who tests positive for drugs, including marijuana,
cannot report to duty, remain on duty or perform safety-sensitive
functions.
In addition, the employer may not permit the
worker to perform any safety-sensitive functions until the worker has a
substance test indicating a negative result.
However, it is not clear what employers can do
next.
Sending an employee to rehabilitation would be the
next logical step, but how do you rehabilitate someone who has been
medically prescribed the drug? Termination may also be out. So what
should employers do?
Since federal guidelines do not allow an employee
to resume driving, for example, with a positive drug screen and since
marijuana stays in the body's system for weeks, employers may be forced
to place an employee on medical leave until he gets a negative test
result.
Employers will need guidance from the Legislature
or the courts on this and should consult with a lawyer in the interim.
Employers may find themselves in a difficult spot
-- caught between a new law legalizing, in limited situations, what is
illegal under federal and in most state laws. And what complicates it
more, guidance from the state is slow in coming. Without it, employers
may have to wait for the courts -- and no one wants to be the test case.
In the interim, employers still must run their
businesses and should put procedures in place for dealing with
employees who are allowed medical marijuana. In addition, employers
should continue to follow federal requirements including the mandated
testing.
CONSULT LEGAL COUNSEL
However, do not terminate employees who test
positive without consulting legal counsel first. Consider putting these
employees on medical leave. And if you currently have a state-approved
drug testing policy, consider excluding the testing of medical
marijuana.
Educate your managers and supervisors on the
changes in the law so they can properly handle these employee
situations. And finally, consult with your attorney before taking any
adverse actions with an impaired employee or those who test positive on
a drug screen.
There is a lot we still don't know about Maine's
new medical marijuana law.
We are in uncharted territory, and it is safe to
say that it is only a matter of time before many employers will be
faced with an employee who is legally using marijuana.
Take what steps you can to prepare now, including
updating your policies and procedures and training your managers and
supervisors. In the short term, dealing with this new law is going to
complicate managing your work force.
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