Weeding our marijuana at Work

Human Resource Managers may be the next to tackle the effects of Prop. 215

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

It may soon cause ripples in the community of human resource managers
people who will have to draft new company policies about testing and
dealing with the hiring and firing workers who use 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, the 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. Now, Prop.
215 opens up new vulnerabilities with a new class of workers people who
use marijuana to cope with an illness.

Propositions passed by voters in California and Arizona 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 controversial initiatives, the federal
government has stepped up its "war on drugs," using what some doctors call
scare tactics to curb prescriptions. The medical communities are at odds
with each other over smoking marijuana, versus taking synthetic Marinol in
pill form. Others question the efficacy of using an illegal drug in place
of conventional therapies to relieve pain for severe glaucoma, cancer and
other terminal illnesses.

Companies and legal experts draft have any figures on the number of workers
who could benefit from Prop. 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.

Though the number of positive tests have hit a 10yearlow, drug testing
in the workplace is at an alltime high. The share of majorU.S. companies.
that test for drugs rose to pan, 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 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 Houston, Texasbased
Drug Intervention Services of America. The company, which has offices in
Pleasant Hill, runs drug testing for a consortium of about 200,000
employees nationwide, including a large chunk of workers at East Bay
refineries.

Few companies have implemented new policies relating to Prop.
215. One East Bay firm Tosco Corp. in Martinez plans to simply
follow=09current 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," said the refinery's spokesman
Jim Simmons. "It's a waitandsee attitude."

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

"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=92t 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
state Fair Employment and Housing Act also protect employees from
termination if they are disabled and use prescribed medication to help
their condition. Some legal experts said the federal drug possession laws
are in direct contraction with laws that protects people with disabilities.
"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 G, Panzer, an
Oaklandbased criminal defense attorney and a codrafter of Prop. 215.

As new company policies relating to the use of marijuana in the workplace
and drug testing take shape, experts predict the policies would probably
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 1 1,000 employees of Alameda County state that possessing
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
Prop. 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 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 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 Prop. 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 six
months old, the coop has about a dozen patients who suffer from cancer,
glaucoma and the HIV virus. A similar coop in Oakland serves 900 members.
=09"When they are off the clock, that is their time," Pylka added. "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," said Tosco's Simmons.
"I don=92t 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 work force,"
added Robert Wilson of East Bay National Organization for the Reform of
Marijuana Laws in Hayward. 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," said Wilson. "You have to talk to
them, that's where I think it's headed. There's going to be more of a
personal approach."