February 1, 2010

One Toke Over the Line

My colleague Julie Ferguson raised some fascinating issues relating to the growing movement to approve marijuana as a medication. As is so often the case, the implications for workers comp diverge substantially from general health issues. A toke may be just what the doctor ordered for pain management, but in the context of the workplace, any such prescriptions are likely to preclude actually reporting to work.

Here are just a few reasons why the use of medical marijuana is incompatible with the workplace:
- I cannot think of any job suitable for a person who is experiencing a marijuana high (actuaries? Just kidding)
- You cannot operate a motor vehicle or any piece of equipment safely while under the infuence of marijuana
- Imagine the impact on co-workers when a fellow employee lights up a joint. ("Note from a doctor. Yeah, right! By the way, who is your doctor?")
- Smoking is prohibited by law in virtually all indoor workplaces. "Accommodating" a marijuana smoker by allowing him/her to light up outside of the building raises issues for co-workers and the general public, not to mention the police.

It will be very interesting to see how strongly state legislatures step in to protect medical marijuana users. As Julie pointed out, no state is currently requiring that employers offer "reasonable accommodation" in this situation; it is unlikely that any will do so. The day may come when marijuana makes the list of approved medications in the workers comp system, but prescriptions for weed are unlikely to be accompanied by a return-to-work release from the doctor.

Medical marijuana, along with alcoholic beverages and prescribed opiates, may be legal substances, but employees under their influence do not belong in the workplace. Employers should place the burden of proof squarely on the shoulders of the treating doctor, who must be able to certify in writing that the prescribed use of pot does not put the employee, co-workers and the public at risk for injury. Quite frankly, unless someone works from home, I don't see how this burden of proof can be met. When it comes to performing a job safely, any toke is a toke over the line.

| 3 Comments

3 Comments

"One toke over the line"

Jon you must be my age or so.

Though I agree with medical use of marijuana as you state it like many other substances is not compatable with much of the work place. These problems like problems with other substances will have to be worked out. Use on the job cannot happen under any circumstances until the proper authorities have authorized it's use. Any thing else would be aasking the police to "hit me with your best shot".

Points well taken, however workers are going back to work high on Vicodin, Oxycontin and other heroin like opiates. It seems to me that they same approach should be taken with any of these drugs so I see this argument as flimsy. On the smoking issue I know there are other means of ingestion. Of greater interest to me will be a FEHA (California state version of ADA w/o caps) suit when an employer terminates an employee for having THC in their system in violation of a company policy, w/ the caveate being that it was being used legally by a prescribing doctor in a state like CA where it has been legalized for medicinal use. I think that is where the most interesting and highest stakes controversy will be.

Surely, medical marijuana is not the first prescribed medication that would compromise an employee's ability to work safely and efficiently. Have there been instances of "reasonable accomodations" made for employees legally taking other narcotics, such as Oxycontin, Vicodin, Percocet, etc.?

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This page contains a single entry by Jon Coppelman published on February 1, 2010 9:40 AM.

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