Monday, July 19, 2010

Legal pot wouldn't stop office testing

If California ever legalizes marijuana usage, employers will still have the right to test employees for it, experts say, because the proposed laws don’t offer new protections in the workplace.

“The employers will continue to have the right to determine what level of impairments they allow in their workplaces,” said Karen Gabler, an Oxnard lawyer who specializes in labor law.

Marijuana wouldn’t be treated differently than prescription medicines or other legal substances that cause impairment, Gabler said, should legalization occur under a new bill alive in the state Assembly, AB 2254, or Proposition 19 on the Nov. 2 ballot.

“Alcohol has been legal for a long time, but you’re still not permitted to be under the influence of alcohol in the workplace,” she said.

But marijuana remains in the system longer than alcohol, and may register on tests long after smokers feel any effect. A smoker could test positive for the drug even a week after smoking marijuana.

“We don’t want the employer independently analyzing whether the employee is truly ‘under the influence’ because it’s too subjective,” she said.

It’s up to employees to decide whether to raise the issue and challenge the adequacy of drug tests as a gauge for measuring impairment, lawyers say.

If an employee is smoking marijuana for legitimate medicinal purposes, Gabler said employers would treat it like a disability and offer employees a leave of absence until they finish treatment.

Lawsuits have been brought by medical marijuana users who argue they are entitled to protection from medical discrimination, and have rights under the Americans with Disabilities Act.

The conundrum for legal scholars is that under the Americans with Disabilities Act, a person who takes “illegal drugs” is not a “qualified individual with a disability.”

Whether medical marijuana is technically “illegal” under the act is a question being debated, as it’s not illegal in certain states, but is a crime under federal law.

Rhode Island took care of the issue by enacting a medical marijuana law that explicitly states employers cannot discriminate against medical marijuana users. But neither of the proposed laws in California would protect a medical marijuana patient from employment discrimination, according to Tamar Todd, an attorney with the Drug Policy Alliance in Berkeley.

Were either to become law, Todd agrees that little would change in the workplace. Common law — a 2008 case called Ross v. RagingWire Telecommunications Inc. — would still govern workplace issues concerning medical marijuana.

“Since that case is currently controlling law in California,” Todd said, “employers in California can fire patients for their medical use. California companies don’t really need to come up with a defense for firing patients because the California Supreme Court has said it is legal for them to.”

A change in the law also wouldn’t warrant new policies for random drug testing.

Random testing can be conducted under limited circumstances under current law, Gabler said. For example, random testing can occur if an employee works a job where safety is an issue. Testing can also be conducted when there’s “reasonable suspicion that an employee is currently under the influence.”

“Reasonable suspicion is the key,” said Gina Hudak, a third-party administrator for drug and alcohol testing programs in the workplace who does training for Ventura County companies and public agencies.

“There has to be reasonable suspicion,” she said “It can’t be somebody comes to the employer and says, ‘hey, I know so-and-so smokes pot.’”

Management has to be trained in what to look for, she said, and “be able to articulate that there’s something about the person that indicates they’re impaired because there’s something out of the ordinary about their speech, behavior or appearance.”

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