Monday, January 25, 2010

Medical-marijuana users on uncertain ground in workplaces

DENVER â€" Last year, Dorian Beth Wenzel, a Manitou Springs, Colo.,
writer and arthritis sufferer, penned a letter to a local newspaper that
disclosed her status as a medical-marijuana patient.

The paper printed the letter, and soon afterward Wenzel found herself
face-to-face with the human-resources director of the nonprofit
organization she works for. Wenzel’s office, her HR director told
her, is a drug-free workplace.

“It is kind of scary when your HR department is telling you that
you could be fired,†Wenzel said. “And it’s like,
‘Why?’ â€

To Colorado’s already-vexing cannabis conundrum, add yet another
riddle: Are medical-marijuana patients protected from discipline under
their employers’ anti-drug policies?
In the past week, two other stories that pose such a question have

-- In the first, an Idaho Springs high school teacher and football coach
resigned from the school after being charged with smoking marijuana on
school grounds, even though he said he was a legal patient.

-- The second involves a Denver city employee who failed a routine drug
test taken after an on-duty car accident. The employee said
medical-marijuana use accounted for the positive test.

Can an employer punish someone for doing something that is
constitutionally protected?

“This issue is up in the air right now,†said Vance Knapp,
a Denver lawyer with Sherman & Howard who deals in employment law.
“It hasn’t been litigated through the courts.â€

In other words, nobody really knows yet.

The constitutional amendment that authorizes medical marijuana in
Colorado has this to say on the matter: “Nothing in this section
shall require any employer to accommodate the medical use of marijuana
in any work place.â€

That provision makes on-the-job use or impairment a clear violation at a
drug-free workplace, but the outer boundaries of the provision are
subject to greater debate.

Advocacy organizations contend that employers have interpreted the
language broadly, using it to punish even patients who use medical
marijuana in off-the-clock hours and never show up to work impaired, as
Wenzel said she doesn’t.

“It’s been deciphered to mean that employers can fire a
medical-marijuana patient for just about anything,†said Brian
Vicente, the executive director of the medical-marijuana patient-rights
group Sensible Colorado. “Basically, it’s a form of
legalized discrimination against sick people who choose to use medical

Courts ruling on similar questions in two other states â€"
California and Montana â€" have sided with employers in giving them
authority to fire medical-marijuana patients who fail company drug
tests. But there are two key ways in which Colorado’s laws differ
from those states:

- Colorado’s medical-marijuana law is embedded in the
state’s constitution rather than just statutes.

- Colorado has something called the Lawful Off-Duty Activities Statute,
which prevents employers from punishing employees for doing something
off-duty that is legal.

Boulder lawyer Jeff Gard, who represents medical-marijuana patients and
said he gets several calls per week from patients worried about keeping
their jobs, said state and federal anti-disability-discrimination laws
also would protect patients.

“You’re not going to tell a diabetic, ‘We’re
going to fire you for using insulin,’ †Gard said.

Knapp, the Denver lawyer, said marijuana’s status under federal
law as an illegal drug â€" no matter how it’s used â€"
could nullify all those laws’ protections. But he quickly noted
that an Arapahoe County judge’s recent ruling â€" in which
the judge said a city couldn’t cite federal law to shut down a
medical-marijuana dispensary â€" might counter that argument.

For now, Knapp said he is advising the employers who ask him about the
issue to update their anti-drug policies to specify that they include
drugs that are illegal according to federal law as well as locally.

“Employers need to be very cautious in addressing this situation
because there are a lot of land mines out there,†Knapp said.

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