MARIJUANA LAW POSES WORKPLACE RIGHTS PROBLEMS

PHOENIX -- Arizona's new medical marijuana law is going to create new
problems for employers trying to promote a safe workplace while
respecting the new rights of those who will be able to legally inhale the drug.

The law spells out that a worker who has one of those state-issued
cards allowing them to possess and use marijuana cannot be fired or
otherwise disciplined solely for testing positive on a drug test.

Nothing in Proposition 203 permits an employee to imbibe while on the
job. And the law says that immunity from being discharged does not
apply to a worker who is "impaired."

But two attorneys who specialize in labor law disagree on how hard it
will be to prove that.

"The first thing I'm going to tell any employer to do is take a close
look at their existing written policies regarding drug and alcohol
use in the workplace," said attorney Don Johnsen. "We want to make
sure the policies reflect the changes in law so the employer is not
viewed as going farther than what the law allows."

That goes directly to the question of policy of testing workers,
whether at random or following an accident.

"If the positive drug test is of a person who's a cardholder, the law
has a presumption that the marijuana use was for medical purposes,
not recreational," said attorney David Selden.

That, then, presents a new hurdle for a company which wants to fire a
worker. Selden said that will require proving impairment.

"One of the most common ways is through symptoms," he said, "a
delayed reaction, a lack of perception, loss of energy, bloodshot
eyes, dilated pupils -- those kinds of things that people remember
from college," Selden said.

"It's turning employers into the equivalent of a field sobriety
test," he continued. "There is a not a scientific measurement of
impairment the way there is for alcohol."

With alcohol, for example, there are specific measurements: A
blood-alcohol content of 0.08 is considered presumption of
intoxication under state driving laws.

Not only is there is no numerical standard for marijuana, Selden said
the test used doesn't even measure current impairment. He said a
worker who has used marijuana weeks earlier still can test positive.
Johnson, however, said he believes employers can take a much more
hard-line approach to rid their companies of workers who test
positive, including those with the medical marijuana cards. He said
that, as far as he's concerned, any worker with any amount of
marijuana in his or her system could be considered "impaired."

"We know from physical testing that people are actually impaired by
their use of marijuana for days after they actually use it," he said.
Johnsen said there is scientific data which measures things like agility.

One 1985 study at Stanford University allowed airline pilots to smoke
low-grade marijuana and then put them into flight simulators. That
resulted in numerous "crashes."

But the real key, said Johnsen, is that they got back in the
simulator a day later and still crashed the planes.

"And it was pretty clear the reason they were crashing was because
they were impaired, they were influenced by the marijuana that was
still in their system," he said.

Johnsen said a company that works with a pharmacologist or other
scientific expert on the effects of marijuana will be able to justify
firing a worker based on impairment.

Selden, however, said he would not advise companies to fire a
card-carrying worker based solely on a positive test.

"Employers are going to have to train people who are supervisors in
safety-sensitive jobs to tell what the symptoms are and to observe
their employees for signs," he said. That means going through
procedures to ensure a worker is alert and oriented. Selden said the
need for that goes beyond identifying and firing an impaired worker
without being sued by that employee. He said a company faces possible
lawsuits if it doesn't find that worker.

"Under Occupational Safety and Health Administration (rules) there's
a duty to provide a workplace free of recognized hazards that could
cause serious injury," Selden said.

That anti-impairment requirement of Proposition 203 applies across
the board, and not just to those who are running equipment or doing
other potentially dangerous tasks.

"But I don't think employers are going to be going around and looking
into everybody's eyeballs and checking them out in the morning," he said.

Selden said there's one other danger for employers in the new law:
the possibility that someone who has a medical marijuana card -- and
the company knows about it -- claiming they are being subject to
closer monitoring than coworkers.

There aren't a lot of legal precedents for Arizona employers to
follow in figuring out how to deal with the law. That's because the
medical marijuana laws previously enacted in most states do not have
the workplace immunity provision.

It was problems that developed for workers elsewhere which caused the
sponsors of the Arizona measure to add the language.

One of the most noted cases involves a former Walmart worker in
Michigan who obtained a medical marijuana card under that state's
laws to deal with the pain from sinus cancer and a brain tumor.

Joseph Casias said it never was an issue until he sprained his knee
at work and, pursuant to company policy, had to take a drug test. He
said company officials fired him for the positive test, saying
nothing in the Michigan law requires the firm to honor the marijuana cards.

Despite the lack of an anti-discrimination provision, Casias filed
suit against Walmart earlier this month in federal court saying he
was wrongfully terminated.