MEDICAL POT ON THE JOB? EMPLOYERS DISCUSS OPTIONS

Licensed medical marijuana users have rights in Michigan, but two
lawyers speaking in Battle Creek made the case Tuesday that their
employers have rights, too.

James Helminski and Josh Britten, attorneys with the Grand Rapids law
firm Bleakley, Cypher, Parent, Warren & Quinn, P.C., addressed mainly
human resources managers at the monthly Leadership Oasis seminar
hosted by HelpNet, an employer assistance group under Battle Creek
Health System.

"This is a hot topic," said Dan Fry, who helped organize the event. "A
lot of communities are struggling with it."

The Michigan Medical Marijuana Act, which voters passed into law in
December 2008, sets up a loose framework for patients with
debilitating conditions, such as cancer and diabetes, to possess and
use marijuana to ease pain.

But it also contains some language that restricts how employers can
deal with workers who test positive for marijuana and may legally use
it.

In California, Washington and Montana, employers have the right to
fire an employee for using medical marijuana, Britten said. But in
Michigan, no "disciplinary action by a business or occupational or
professional licensing board or bureau" is allowed against a
qualifying patient who has been issued a registration card.

Whether that means an employer has the right to fire or suspend a
registered patient who is using marijuana has yet to be determined by
the courts, Helminski said.

What employers can do is prohibit workers from carrying or using
marijuana during working hours and on company property, he said.

"You as an employer have the right to limit the boundaries of
possession," he said.

Company policies should take into account the safety of other workers
and customers, he said. What they should not do is discriminate
against a person for being registered to use medical marijuana.

The law already says patients cannot use marijuana in public places
and employers are not required to accommodate people who want to use
it. That means if a person requests break time to use marijuana, the
employer does not have to comply.

There are several other kinks in the law that eventually will be
ironed out under litigation, they said. For example, an employee might
not be allowed to be under the influence at work, but he or she can
use it at home.

Because a drug test alone is not accurate enough to pinpoint when the
person last used marijuana, it can be difficult to prove without
eyewitness testimony that the person was under the influence.

"That's an incredibly gray line," Britten said.

A pending case against Wal-Mart Stores Inc., filed by Battle Creek's
Joseph Casias after he was fired for failing a routine drug test --
though he is registered to use marijuana and said he never used it on
the job -- is the first in Michigan to begin to answer some of these
questions.

Brenda Smith, the human resources manager for Omni Community Credit
Union overseeing 95 employees, said she has not yet had to deal with a
case of medical marijuana use among her employees but figures it is
only a matter a time before it becomes an issue. She is concerned
because it is their members' money that is at stake when an employee
is unable to perform his job because of marijuana use.

"It's important for me to know we can still enforce our zero-tolerance
policy," she said.