MEDICAL MARIJUANA CAN TEST BUSINESSES

Employers Must Sort Through Laws, Company Policies

While many suffering with disease and pain are breathing a sigh of
relief from medical marijuana, it's casting a cloud of confusion over
employers who operate a drug-free workplace.

Most of the biggest employers in Montezuma County, including the
county itself, require new employees to take a drug test before they
are hired, and some employers conduct random drug tests throughout
employment.

According to Montezuma County Administrator Ashton Harrison, if
someone tests positive for marijuana on the county government's
pre-employment drug test and they hold a medical marijuana card, the
county would not hire that person "currently at this time."

Sheila Owens, office manager at Four Corners Drug Testing in Cortez,
said the testing facility follows the most recent information and
rules from the Drug and Alcohol Testing Industry Association.

When a company calls and asks what to do if someone with a medical
marijuana card tests positive for marijuana, she and other office
staff recommend that the company follow current state law and the
company's own drug and alcohol policy. If a company wants to hire
someone who tests positive for marijuana, the company is allowed to
change its policy, Owens said.

Laws protect employees who have disabilities and need prescription
medication, but federal laws don't require employers to let people
with medical marijuana cards work for them or accommodate them with
break time to ingest medical marijuana, according to Neal Mynatt, an
employment law attorney in Durango.

Although employers are required to provide employees with reasonable
accommodations under the Americans with Disabilities Act, employees
with medical marijuana cards "are not seen as disabled in the
traditional sense" and are not recognized as such, Mynatt said.

According to ADA law, employers cannot discriminate in their hiring
and firing practices based on an individual's use of prescription
medication for legitimate medical purposes (such as use of the heavy
duty painkiller Oxycontin for chronic back pain). However, there are a
few limited exceptions. To illustrate the ADA rule, the U.S. Equal
Employment Opportunity Commission uses the following examples on its
website: Employees in positions "affecting public safety" - such as
armed police officers, school bus drivers or airline pilots - might
have to report when they are taking medication that could affect their
ability to perform essential functions. A fire department, though,
could not require employees who perform only administrative duties to
report their use of medications because it is unlikely these employees
would pose a direct threat as a result of their inability or impaired
ability to perform their essential job functions.

The biggest distinction between marijuana and other prescription
medications like Oxycontin is that marijuana is still not permitted by
federal law and other prescription drugs are, Mynatt said.

"Basically what you have is a situation where Colorado has passed a
law in violation of federal law," he said. "In the United States,
under our federal Constitution, federal law trumps state law."

Cortez employer Big R requires new employees to pass a drug test
before they are hired and does random drug testing after employment.
If the employee tests positive for marijuana, they no longer have a
job, according to Big R Assistant Manager Mark Houser.

Employers who do hire medical marijuana users can create risks, Mynatt
said.

"The employers who allow people to use medical marijuana on the job
are at risk if an employee who is high on the job kills somebody," he
said. "It's very risky for an employer who hires someone who uses
medical marijuana. It will increase workers comp claims and complicate
the employer's business."

However, there can be some leeway for employees who have jobs that
don't require drug tests, whose jobs wouldn't pose a danger to others
and who don't ask for special favors. As long as employees can
function properly at their job without impaired judgment, the
military's "Don't ask, don't tell" policy could very well apply to the
use of medical marijuana until specific laws determine otherwise.