(RNN) – Marijuana legalization is on a collision course with employers wanting drug-free workplaces, say two attorneys on the front lines of the new legal battlefield.
Legalization of pot also is the enemy of employers seeking to maintain high quality, low absenteeism and steady healthcare costs, says an addiction counselor.
Increased marijuana use is producing more Americans unfit for work and unable to lead productive lives as the head of healthy families, says counselor Richard Taite. In 2003, Taite, who is a recovered addict, founded Cliffside Malibu, an upscale addiction rehabilitation center located on the shores of the Pacific Ocean.
He said society should not be fooled by famous pot users who seem to be able to carry on productive lives.
“There’s a sea change in this country, but that doesn’t make it right,” Taite said. “For every Bill Maher or Willie Nelson there are 1,000, 30-year-olds waking up in their mothers’ basements, without a family or job, screaming for her to make a sandwich while they are playing video games.”
Taite said pot saps the drive of the user, resulting in a lack of productivity and eventually a wasted life.
However, Taite favors allowing those age 25 and above to make the decision to use marijuana. He worries that too many people younger than 23 tend to experiment with weed and abuse it, damaging their brain development.
An April 2014 study published in The Journal of Neuroscience and featured in Psychology Today stated it found negative effects in young adults who used the drug recreationally.
On Jan. 1, Colorado started allowing the sale of recreational marijuana to those 21 and older, which is typically the age at which purchasing alcohol become legal. Residents can purchase up to an ounce at a time while tourists can buy a quarter-ounce.
Colorado was the first state to OK the opening of recreational pot stores and to regulate the industry. The state of Washington also approved the recreational use of marijuana, the third most popular recreational drug in the U.S. after alcohol and tobacco, according to the marijuana reform group NORML.
In the face of increased marijuana use, both Taite and Colorado attorney Danielle Urban agree business leaders have the right to protect themselves and hold their ground on drug-free workplaces. Urban works for Fisher & Phillips Attorneys at Law in Denver and has been involved in workplace issues across the country.
“Employers need to tell employees in advance that it’s not a defense to say it’s legal,” Urban said of marijuana use. “They need to write a coherent policy to address it. Employers need to decide how to treat the issue and make sure policies address medical marijuana. Employers don’t want to fire people.”
Federal law still classifies marijuana use as illegal. However, other states have approved laws for marijuana use to treat medical conditions.
If a worker in Arizona is a medical user, the employer can’t fire them for testing positive unless the person works in a safety-sensitive position, or in a federally supported job, Urban said.
In Minnesota, a user can’t work impaired. Urban said the problem with determining impairment is there is no commercial method to test the condition. Urinalysis is used most often, but tests don’t reveal if drugs were used hours before the test or three weeks earlier, she said.
Pivotal test case in Colorado
There is a case before the Colorado Supreme Court that Urban and New York lawyer Barry Peek believe will provide some clarity.
Coats vs. Dish Network is a collision between a medical user of pot and a business, said Peek, who practices for Meyer, Suozzi, English & Klein, P.C.
In the Colorado case, the employee is a quadriplegic who was licensed to use marijuana for medicine but was fired from a job after testing positive. An appeals court backed up the termination.
The appeals court cited the federal statue on controlled substances, Peek said.
“Coats is the first major test,” Peek said.
Urban agrees and believes the Colorado Supreme Court will back the appeals court.
Peek says the key for employers is to make sure that they don’t turn a blind eye to any addiction, such as alcohol.
“Employers have to make sure alcohol and marijuana are treated the same as far as drug policy is concerned,” he said. “If an employer has a zero tolerance policy, it must be applied to alcohol and not just to marijuana.”
If employers tolerate alcohol consumption, they are not treating all impairing substances the same, leaving themselves open to action.
“If (businesses) have policies for drugs and alcohol, enforce them tightly,” he said.
NORML, which encourages marijuana legalization, says pot use is much less dangerous than alcohol or tobacco, according to its website. The group states that marijuana is nontoxic and cannot cause death by overdose.
The National Drug Free Workplace Alliance says 76.4 percent of illicit drug users have a job, and contends the abuse of drugs, including marijuana, costs businesses between $60 billion and $100 billion a year. Drug and alcohol abusers are four times more likely to go to the hospital because of an injury on the job.
Peek said as Coats’ case and others like it wind through the court system, states and the federal government may develop laws to provide direction. For now, the issue has opened up another line of work for lawyers helping businesses respond to marijuana legalization.
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