'PEOPLE . . . MIGHT BE ABLE TO SMOKE POT AT WORK';
COMPANIES CONFRONT CANNABIS CONUNDRUM By Mara Der Hovanesian, Contra
Costa Times Copyright (c) 1997, Phoenix Newspapers, Inc.

Propositions legalizing marijuana for treatment have
pitted doctors against doctors, the federal government
against state officials and 48 states against Arizona and
California.

It may soon cause ripples in the community of
humanresource managers people who will have to draft new
company policies about testing and who will oversee the
hiring and firing of workers using the drug. "I've talked
to people who are shocked to hear that, under certain
circumstances, there can be people who might be able to
smoke pot at work," said Larry Shapiro, an attorney and
publisher of the California Employer Advisor.

California companies have yet to address the primarily
legal implications of Proposition 215, a voterendorsed
initiative that allows the use of marijuana for medicinal
purposes.

"If someone is denied employment because they test
positive for lawfully using a drug," Shapiro said, "then
that could possibly mean discrimination."

Discrimination. It's a word that strikes fear in most
companies that have avidly educated management and
employees about age and race issues, sexual harassment,
wrongful termination and unqualified promotions.
Proposition 215 now opens up new vulnerabilities with a new
class of workers: People who use marijuana to cope with an
illness.

Propositions passed by voters in Arizona and California
in November state that people can lawfully possess or
cultivate marijuana for medical treatment. The law also
says physicians won't be punished for recommending
marijuana use to a patient. But since the passage of the
initiatives, the federal government has stepped up its "
war on drugs, " using what some doctors call scare
tactics to curb prescriptions. The medical community is at
odds with each other over the smoking of marijuana vs.
taking synthetic Marinol in pill form.

Others question the efficacy of using an illegal drug in
place of conventional therapies to relieve the pain of
severe glaucoma and cancer and by AIDS patients and others
with terminal diseases.

Companies and legal experts don't have any figures on
the number of workers who could benefit from Proposition
215 because most employees are not willing to come forward
about their use of marijuana as a treatment.

Still, marijuana continues to be the most frequently
detected substance in employee drug tests, according to
SmithKline Beecham Clinical Laboratories, the nation's
largest drugtesting firm. The Collegeville, Pa.based
company conducted more than 4 million drug tests in the
workplace last year. It found that 54.4 percent of all
tests came up positive for marijuana use, while 22.5
percent were for cocaine and 5.8 percent were for
tranquilizers such as Valium and Librium. Drug testing in
the workplace is at an alltime high, yet the number of
positive tests have hit a 10year low.

The share of major U.S. companies that test for drugs
rose to 81 percent in January 1996, up from 78 percent a
year earlier, bringing workplace testing to its highest
level since the American Management Association started
surveying the issue in 1987.

The increase can be traced to mandatory federal testing
of employees at the Transportation and Defense departments,
the effects of the Drug Free Workplace Act of 1988 and
insurance companies' attempts to reduce accident liability
and control health care costs.

"You are not allowed to have marijuana in your system,
period. It's still an illicit drug," said Dexter Morris,
president of Houstonbased Drug Intervention Services of
America. The company runs drug tests for a consortium of
about 200,000 employees nationwide.

Few companies have implemented new policies relating to
Proposition 215. One San Francisco Bay area firm, Tosco
Corp. in Martinez, Calif., plans to simply follow current
policies, especially if doctors aren't willing to provide
prescriptions for marijuana. The refinery, which conducts
both random and preemployment drug tests, employs people
in primarily safetysensitive jobs. Smoking of any kind is
not allowed on the premises.

"The department of our attorney general is sort of a
model of how people are dealing with this, at least
temporarily," refinery spokesman Jim Simmons said. "It's a
waitandsee attitude."

That's a predictable strategy for most companies, but
some observers say the status quo ultimately could get
companies in hot water legally.

"Most likely, companies will take a conservative
approach, which will be if an applicant tests positive and
they can't verify the legitimacy for the use, then they
probably won't be hired," Shapiro said. "But it would be a
mistake, and an employer should be walking on eggshells
before they make that decision."

Complicating matters, the federal Americans with
Disabilities Act and the California Fair Employment and
Housing Act also protect employees from termination if they
are disabled and use prescribed medication to help their
condition.

"If someone came to me and they tested positive for
cannabis and they had a legitimate medical need, with no
evidence they were impaired on the job, I'd take that case
in a second," said William Panzer, an Oaklandbased
criminal defense attorney and a codrafter of Proposition
215.

As new company policies relating to the use of marijuana
in the workplace and drug testing take shape, experts
predict the policies probably would address job performance
and safety issues rather than an assumption of abuse.

"It raises a whole set of issues for employers to
evaluate: Can people perform satisfactorily if in fact they
are under the influence (of marijuana)?" Shapiro asked.

Policies guiding 11,000 employees of Alameda County,
Calif., state that using prohibited or illegal substances
is cause for discipline, which includes termination.
Stephen Amano, the county's deputy director for personnel
and labor relations, acknowledged the need for more
flexibility in light of Proposition 215. He could not,
however, officially say where the county may be going with
any future policy changes.

"You have this conflict between privacy rights and
employer's rights. I don't know where we'll finally end
up," Amano said. "If an employee can perform their job
efficiently and in a competent manner and (the drug use)
doesn't endanger themselves, a coworker or the public,
then is it really anybody's business? " Dr. M. Donald
Whorton of Alameda County said, "If you are positive for
marijuana, it doesn't mean you're not functional."

Whorton served on the Committee on Drug Use in the
Workplace for the National Research Council and Institute
of Medicine in Washington, D.C.

Berkeley, Calif., family physician Frank Lucido said he
believes there is a lack of conclusive evidence showing
that a worker's quality of work could be affected when
under the influence of marijuana.

"I think the average physician has just as much
information about whether this person can function on
marijuana as he could on codeine," Lucido said. "This is a
deficiency in medical knowledge and training."

Lucido suggested that either marijuana should be taken
off the list of drugs tested for in the workplace or every
other legally prescribed drug should be added.

What proponents of Proposition 215 say they are asking
for is leniency in workplace regulations for people who are
seriously ill. "Prop. 215 does not give somebody the right
to selfmedicate in a nonsmoking area," said John Pylka,
codirector and administrative coordinator of the Cannabis
Buyer's Cooperative in Berkeley. Less than 6 months old,
the coop has about a dozen patients who suffer from
cancer, glaucoma and the human immunodeficiency virus,
which causes AIDS. A similar coop in Oakland serves 900
members.

"When they are off the clock, that is their time," Pylka
said. "Drug testing for marijuana specifically denies
people that privilege."

The advocates of marijuana as medicine agree that if
the safety of coworkers is at risk or if the patient
cannot perform satisfactorily, employers have a case for
reassignment or termination. In the interim, communication
about drug use between the employer and the worker may be
the best solution.

"It's better to have that known ahead; then we would be
able to accommodate an employee's impairment by providing
alternative work and work that might not compromise safe
working conditions," Tosco's Simmons said.

"I don't see a lot of people starting to smoke because
of 215. The only thing it's bringing forward is there are
cannabis users in the workforce," added Robert Wilson of
East Bay National Organization for the Reform of Marijuana
Laws in Hayward, Calif. He estimates there are about
250,000 people, or 20 percent of Alameda's population,
using marijuana, mostly for recreational reasons.

"It's not going to be in a little jar," Wilson said.
"You have to talk to them; that's where I think it's
headed. There's going to be more of a personal approach."