SuperManager: The Legalization of Medical Marijuana and how it Affects the Workplace:
Christine: You’re listening to SuperManager, the podcast for people who manage people and business. With ideas, trends and expert interviews to help you be a SuperManager.
Sam: So welcome to this week’s SuperManager podcast. We’re talking about medical marijuana, maybe even a little bit about recreational. I have my regular partners in crime with me today from our HR collaboration group. We have…
Tara: Tara Gregor, founder of Breakwell. We are a workplace wellbeing resource and partner.
Natalie: Natalie Meyer, Meyer Group, insurance benefits and investments.
Gerry: Gerry Richardson, I’m a lawyer at Evans and Dixon. I work with employers. I help them manage their relationships with their employees through the courtship, the marriage and the divorce.
Rod: I’m Rod McCann with McCann consulting, dealing with self funded employee benefits, specialized in pharmacy benefit management.
Sam: And Samantha Naes, CN Video Production, corporate video.
Sam: So several years ago my mom had colon cancer and statistically people with colon cancer have a 95% survival rate and she was one of the unlucky 5% that didn’t make it. Towards the end she was with her cancer treatments, she was really having some difficulties eating. She was losing a lot of weight. A lot of people don’t realize this unless you’ve lived with someone who is fighting cancer, if you don’t stay healthy, if you don’t keep your weight up, then you don’t qualify for certain drug trials and things that could end up saving your life. So I remember going out there to visit and my dad was giving her these drops and I said, what is that? And he said, oh, it’s liquid form of medical marijuana. It kind of helps calm her stomach down a little bit. And I said, oh, I didn’t know you could do that. And he just, you know, didn’t really want to talk about it, but it was helping her keep her appetite up. And this was 15 years ago, this was a long time ago. Now you’ve got several states that are legalizing medical marijuana and even just for recreational. Yes. Yeah. Just for recreational use as well. Gerry our resident attorney, do you want to tell us a little bit about the legalization of medical marijuana?
Gerry: Sure. You’ve got 33 states that allow medical marijuana in some form. Each state has its own laws, so there are variations among the states. Then you have 10 states that allow the use of marijuana by anyone. Generally there’s an age limitation 21 and over is the typical age. Kind of like alcohol. Right. That’s those are state regulations. The federal law remains in effect, marijuana is a controlled substance under the controlled Substances Act. It’s a schedule one drug. The schedule one drugs to be on that list means they have no medically approved use, that they have a high potential for abuse and they lack any excepted safety use, so it’s kind of directly at odds with the state medical marijuana law saying there is a medical use, but in any case, the federal law is the law of the land. The penalties that are involved can go from misdemeanors, which typically have low levels of imprisonment of less than a year, sometimes no imprisonment and fines, usually $1,000 or less. But because of our criminal justice system with mandatory minimums and three strikes and you’re out, you escalate quickly to higher fines and longer prison terms. And if you have quantities that are more than perceived to be for personal use, you suddenly are facing felonies under the federal law. So it’s a very serious consequence. And just because you’re in a state that allows you to either use it generally or for medical purposes, doesn’t mean you can’t be prosecuted under the federal law-
Sam: Do you think it’s really taken that seriously anymore. I mean, we’re not legal for medical use as of right now.
Natalie: We just approved in 2018, but it won’t actually be in people’s hands probably til early October.
Sam: But if somebody got pulled over and they had a small amount of marijuana in their car before it was really considered illegal. Is somebody going to haul you into jail for that, I mean, has it become to a point where people are like, well, we’ve got bigger fish to fry than to worry about things like this.
Gerry: There’s always prosecutorial discretion.
Sam: Yeah.
Gerry: And both in St. Louis City and St. Louis County, the prosecuting attorneys have said they’re not going to prosecute possession of marijuana. Now possession is in the eyes of the beholder. So I think they’re thinking of be like four ounces or less, which is in a large quantity, definitely personal use. But if somebody has six bricks of marijuana in the trunk of their car, that person’s going to get prosecuted.
Sam: So it’s really kind of a bit of a gray area right now.
Rod: Well, and that discretion of the quantity with, if it’s several bricks of the trunk, well, they’re not going to turn and look away…
Gerry: Right. No, but prosecutorial discretion happens in enforcement all the time. The question though, there’s a difference between the federal law enforcement agencies and what they do and what the state does. And the state, essentially prosecuting attorney generals are operating under the state law. The feds typically, like the Drug Enforcement Agency is involved in going after dealers.
Sam: So Natalie, you’d kind of wanted to talk a little bit about sales and expectations.
Natalie: In 2018, it was estimated to be between $7.4 and $9.3 billion sales.
Sam: Wow.
Natalie: And it’s expected to jump between $10 and $13.5, in 2019.
Sam: I noticed like with lottery tickets when they legalized gambling with lottery tickets and they talked about a lot of the sales going towards the school system. Is it the same thing with legalizing miracle mari… [laugh] Let me try that again. Medical marijuana. Is it kind of the same with legalizing medical marijuana or any of the taxes or anything going towards the school system or the roads or anything like that?
Gerry: There was a constitutional amendment for Missouri.
Natalie: Right.
Gerry: It was enacted on November 6, 2018, and that amendment specifically says that the taxation of marijuana goes to administer the program and anything else goes to programs to support veterans for education, housing… Yeah.
Rod: Well and then they have like three different amendments for the voters to vote on, which had three areas that was designated to go to or how to handle it on the ballot.
Natalie: Right. There were three different things to vote on. Yes. And they had different little rules and how the funding was going to be used in taxation, so…
Gerry: But only one was enacted.
Rod: Correct… Correct.
Gerry: And what essentially for the medical marijuana under that amendment, you have to have a qualifying condition, which at first sounds like it might be limiting. And there’s, there’s about nine qualifying conditions
Sam: Isn’t that kind of a joke, though? I mean, isn’t like headaches or something… Or stress or anxiety?
Gerry: Cancer, epilepsy, Glaucoma, migraines unresponsive to other treatments. So basic headaches, no. If you don’t have migraines yourself, if you’ve ever been around people with migraines, they can really be debilitating. So a chronic medical conditions that cause severe persistent pain or muscle spasms is another, which a lot of what we talked about with the opioid crisis, that’s what that opioids are treating. Debilitating psychiatric disorders, HIV or acquired immune deficiency syndrome, terminal illnesses, and then the catchall chronic medical conditions normally treated with prescription medication that could lead to physical or psychological dependence, if a physician determines that marijuana could be effective and offers a safer alternative.
Sam: So depression or anxiety or headaches or…
Gerry: Almost anything.
Natalie: Yeah, right.
Sam: How has this, I mean obviously it’s affecting the economy and it’s, you know, people who really do have certain, like my mother, like cancer patients and things like that. What about the workplace?
Natalie: They can still drug test and if they say you have to have a clean system, I mean Gerry can weigh in more on from the legal side, but it’s not something that just because it’s allowed in that state that everybody has to just say, oh, it’s okay.
Sam: I was curious about that because I have worked for companies before where they require you to pass a drug test and if you meet one of these conditions and you’re legal to use medical marijuana, then can you be fired for failing a drug test?
Gerry: Well, let, let’s look first at what the amendment says. And it basically says employers can prohibit employees from being under the influence of marijuana in the workplace.
Sam: So they can take it after hours, but they can’t come in-
Gerry: And what it would basically says employees can’t be sued for terminating employees that are present in the workplace under marijuana. So then you get all these interesting questions that aren’t answered here.
Sam: But how do you know?
Gerry: Well hold on, hold on. What if you have someone who has medical marijuana and is not taking medical marijuana during work hours but takes the medical marijuana outside of work hours? I mean the normal high lasts two to six hours. So you could have somebody-
Sam: But I had, I had a question about what you said earlier that employers can not allow them to be under the influence at work. But how do you know, because drug testing isn’t you’re high, now it’s, is it in your system? So how could you even prove…
Natalie: That’s part of the hardest part.
Gerry: Well, here’s what drug testing does. Drug testing typically it’s a urine test, but if they use hair, that’s another way. But all the tests are measuring a byproduct of marijuana, so it’s THC is the active ingredients of byproduct of it that gets stored in body fat. So it ends up showing up in a urine specimen as this byproduct, but that does not tell you whether the person is impaired at the time. In fact, if you’re a heavy user, let’s say three to five times a week and you go clean for 30 days, you can still produce test results that are positive for marijuana under the standard marijuana test.
Sam: What if an employer suspects, I mean you’re working with someone, you just suspect that they’re not really a hundred percent focused on their work. I don’t really know how else to put it, but you suspect that that might be the problem. Then as an employer, what can you or should you do?
Gerry: What you’re left with because testing doesn’t tell you is the person impaired at the time. [Right], and the only exemption that you get for terminating somebody is if they are under the influence at work. Under this amendment, you’re left with test results plus other evidence and the other evidence are what are the symptoms? Well, it depends on how you take marijuana. People that smoke marijuana at least get bloodshot eyes. There certainly can be euphoria and it gets involved with people that are under the influence of marijuana.
Sam: I’m writing you up for euphoria at work.
Gerry: Euphoria plus a positive test.
Sam: It would be so hard to tell. I mean the blood shot eyes I can see and I didn’t realize that’s only if you smoke, so like the edibles, if somebody were doing edibles or… Or some other form, they wouldn’t have the bloodshot eyes, so you really would have no way of knowing. It would have to be performance based. If someone’s performance was truly suffering, it would be a performance issue.
Natalie: It’s really the only way to look at it because everyone’s going to handle a drug differently. You may not even get bloodshot eyes or maybe it could be a million other things and maybe it just doesn’t show up. Like you said, it’s going to have to be something you just have an inkling.
Rod: Or they’re handling heavier equipment. [Yeah.] You know, what is that person…
Natalie: In those situations it’s a zero… A lot of times it’s zero tolerance because of a lot of manufacturing, they’re like, you know, even if you have, and I’m sorry, but there is no test to show, are you high at the moment and it stays in your bloodstream so long unlike alcohol and some other drugs. It makes it very hard.
Sam: Can you legally not hire someone because they’ve been prescribed medical marijuana and you feel that the job requires someone who is not impaired.
Gerry: Well, there’s several issues there. So you have the state amendment and it doesn’t require you to hire somebody that’s using medical marijuana. So you can still exclude people from-
Sam: You can still drug test?
Gerry: Now, if I, if I’m a plaintiff’s lawyer, if I put that hat on, I say, well wait a minute, there’s this law in Missouri that says that it’s lawful for medical marijuana. There’s a law that says, Gee, if it’s lawful, you can’t discriminate against me in my employment for my outside the workplace use of this, and it’s primarily addressed at alcohol and cigarettes. Those are the two lobbying groups that got that legislation through. It was done 15-20 years ago. It doesn’t say anything about medical marijuana, but if I’m a clever plaintiff’s lawyer, I’m going to argue that’s what the public policy is in the state of Missouri. If it’s legal to do outside of work, you can’t discriminate against me. I can’t tell you what a court of appeals will do with that, but that’s ultimately, what, where it will go.
Sam: But you can still legally drug test someone and then, I’m trying to think of the right way to say this. There are always reasons to hire or not hire someone. You can legally drug test someone and if you’re concerned about how they will perform on the job and they’ve been prescribed or they failed for marijuana usage, it’s for informational purposes. If there are other reasons why they may not be a good fit, then…
Gerry: Well, let’s look at drug testing. Many employers do drug tests as part of preemployment and because of the Americans with disabilities act, what they’ll do is they’ll make a conditional offer of employment. So you have-
Sam: Well, what all are they testing for though? You say they’re doing drug testing, so they’re testing for marijuana, I’m assuming, and opioids or… What do they find out from these drug tests? What does it include?
Gerry: Typically they can add, and you can subtract, the typical panel is what is required by the Department of Transportation. The Department of Transportation requires that drivers and employees and safety sensitive positions, it’s also the nuclear regulatory commission as the same thing for nuclear power plants. Airline pilots, uh, NASA has similar things. Okay. But in any case, they have a panel of about six different substances that there are classifications they test for. Marijuana is one barbiturates are one. Opioids are another. And so if you test at a positive level, and those are things which have been determined, there’s a CDC approved methodology that is used and they’ve tested positive level and you can’t explain why you have that. And so it’s not just a poppy seed muffin and you’ve tested possible, right. You know, opioids, it’s perfectly acceptable to exclude a test for drugs that is given before employment is not a medical test under the Americans with disabilities act. I draw that distinction because during employment, the only time you can ask medical questions, require medical test and a drug test during employment would be a medical test is if there’s some presenting reason why the employer has reason to believe that there is a disability and they can measure it.
Natalie: I know a lot of times, like you’re saying, trucking or transportation stuff, and we’ve worked with a lot of different groups that have fleets of people, whether it’s heating and cooling kind of guys or landscape or something. If there’s any type of accident in a company vehicle, regardless of, you know, what happened, they would ask everyone to go have a drug test. And that was a policy, you know, that’s not something, but that would be a situation that even if they’re the most straight laced person, just they usually would make-
Sam: How can it effect most performance. I mean, I know that you’re going to be somewhat impaired. And I’ve thought about this legalization for recreational use… Well alcohol is legal. It’s not one of my concerns as a hiring manager, am I going to hire a drunk, you know, or somebody who’s going to come into work drunk. But, like you said earlier, Natalie, you don’t always know like you could smell alcohol on someone’s breath or are they popping mints? You don’t know with marijuana. Is it an impairment that would be noticeable. And is it something that people are concerned about?
Natalie: Potentially, I mean it could be. And I think one thing we haven’t brought up yet is also a difference between THC and CBD, which are both considered on the medical marijuana side and CBD has no psychoactive properties. So that’s something that you wouldn’t know probably at all. And that’s usually something that people use for like an anxiety or pain or that sort of a thing.
Sam: So that wouldn’t affect their work performance?
Natalie: Not at all.
Sam: You could drive?
Natalie: Yeah, absolutely. I mean it has no psych- I mean they give it to children for epilepsy. Also with CBD and THC topical, for people getting you know, pain, joint pain or something. You’ve got a sprained ankle and whether even if it is a THC balm that you put on your ankle, it would not affect you. It doesn’t like seep in your bloodstream and make you high. I mean if you maybe licked your ankle or something.
Sam: If you see somebody licking their ankle in the office, you should be very suspicious,.
Rod: Very flexible person. [Right.] I couldn’t do it.
Gerry: There are other issues though because for example, under workers’ compensation law there’s a occupational injury and the employer has mandatory testing after the occupational injury. If the test is positive, then the employee is subject to a reduction in worker’s compensation benefits and other circumstances can be denied the benefits all together. So there is nothing to say now what will happen if there’s a worker that yes does test positive for marijuana but it’s medical marijuana used appropriately. So the employee is probably going to say, I didn’t take it while at work. I took it, you know, the evening before or whatever outside of working hours. And how will that be resolved? I mean ultimately we’ll have to wait for court decisions to tell this.
Sam: It doesn’t sound like there’s a real solution for employers, for managers, you don’t, you don’t really know. You can’t really tell. Even drug testing wont give you a definitive answer as to whether they were using during work hours.
Natalie: There’s no breathalyzer per se for this…
Gerry: No, but I mean there are some ways that don’t involve drug testing even to give you some kind of…
Sam: Offer them a brownie and see how quickly they take it?
Gerry: Well that’s a possibility. But-
Sam: If they’re hanging out at the vending machine…
Rod: Obviously this is not impacting us here…
Gerry: You can test the motor skills of people for example. And you can also test their thinking and their reaction and you essentially, you could have almost like a video game for employees. You would establish a baseline where, theoretically, they’re not impaired, they haven’t taken any drugs. And if someone comes in for any reason, it is outside of what’s the acceptable standard deviation for the baseline to say, okay, you’re not working today. Whether that’s a parent that’s been up all night with a child or whether that’s somebody that’s been out all night and just using, you know, traditional good ole alcohol or whether it’s somebody that has used some kind of maybe prescribed medication but it doesn’t-
Sam: Just under stress or you know, I hadn’t thought about that. That’s a really good idea.
Natalie: Whether you were smoking marijuana, whether you were up late with your kid… You know, there’s a lot of things that people come in and they’re like really dragging and having something, especially if you’re going to be operating heavy equipment.
Rod: It just occurred to me what you’re sitting in a room, somebody else, or if you’re at a concert and you’ve got part of concert smoking marijuana-
Sam: All of a sudden Rod sounds like an afterschool special, you’d go crazy and jump out of a second story window from second hand smoke.
Rod: If you happened to be tested or something and the next day and-
Sam: Are they, are they strong? I mean if you were at a concert-
Gerry: If you’re running a venue, you can prohibit smoking altogether or you know, have locations-
Rod: I’m not talking about the venue…
Gerry: No, you’re talking about second hand smoke, but what I’m saying is odds are you’re not going going to be in the presence if the venue is enforcing that.
Sam: What about, what about people that… you, so you can, you said earlier that you don’t have to allow people to, even if they have a prescription for medical marijuana, you do not have to allow them to use it at work. I mean, they have a prescription but cancer patients, somebody who really needs it, you can tell them no,
Gerry: The way the amendment is written. Essentially it is permissible if someone is using medical marijuana at work and is under the influence of medical marijuana to terminate that person from employment. I mean, you can do things less than that, but I mean that’s the bottom line, you can go that far.
Sam: You could like not allow it on the premises.
Gerry: Yes, you can not allow it on your premises. And I would think that most employers will not allow the use of medical marijuana in the workplace because it has all kinds of unintended consequences and most of them are adverse to productivity in the workplace.
Natalie: I think California was the first one and they just approved something where all the states, although they may, whether it’s recreational or medical, they don’t allow for you to be consuming this in public. California just, I think, passed it. And there’s talks of cafes and some places like that where people could actually come and enjoy it, but everything else it’s been like, you can have this, you can buy this, but you’re not to walk out the store and immediately consume it in public. So with that same mindset in a workplace would be considered a public place, which would not be a legal way of taking that drug.
Sam: Okay. I think we’re at a pretty good stopping point here. Does anybody have a the good office horror story of the week?
Rod: Well, I don’t know if it’s an office horror story, but in dealing with-
Sam: No, I only want an office horror story.
Rod: It could be, there was a, uh, a local, uh, steel entity and the CEO was experiencing a lot of abuse of alcohol by the members and so I’m wondering how would this would’ve been handled with the medical marijuana, but they could go out and they’d go to lunch and they’d have a drink or two within the establishments, so close to the plant and come back and had difficulties restricting that. So he went out and bought within circumference is so many miles bought, all of these establishments that they could drink at to restrict that and-
Sam: Wow.
Rod: And so-
Sam: That’s kind of an extreme to solve the problem.
Rod: But if you’re having that problem, and it’s really limiting production on the floor. It produced the outcome that he wanted it to produce.
Sam: I used to work with someone, she didn’t operate heavy equipment. She worked a clerical job answering phones and kind of assisting in the department, but we all knew, uh, she came in the morning smashed and she’d start to come down and she’d go out to lunch. She’d come back smashed. And it was, it was just kind of a department joke, you know, we all knew what was going on with that and nobody did anything about it. But you know, she didn’t have a dangerous job or anything. And it was several years ago. But looking back, that was an interesting, I can imagine having a problem like that when you’re talking about steel workers and right heavy equipment.
Christine: Thanks for listening to SuperManager by CN Video Production. Visit our website at cn-video.com for additional episodes and lots of super manager resources. Or give us a call at 314-VIDEO ME (314-843-3663)