Medical Marijuana and the Workplace

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Rick DeGraw of SCF Arizona, the state’s largest workers compensation insurance company, discusses the potential impact of medical marijuana on the workplace.

Ted Simons: Arizonans approved a medical marijuana measure in November. The new law is raising questions, though, regarding drug policies in the workplace. Here on help answer some of those question assist Rick Degraw, vice-president and chief of staff for SCF Arizona, a workers' compensation insurance company. Good to see you here. Thanks for joining us.

Rick Degraw: Good evening.

Ted Simons: The new law impacting personnel policies in the workplace. Give us an overview and then we'll target in on some things.

Rick Degraw: The new law passed of course permitting medical marijuana to be utilized by people that get a card and many of those people are going to be workers in our community. And our concern at SCF is to reduce workplace injuries and increase workplace safety. The issue is that employers need to change many of their personnel policies because of the new law. And if they don't, they could be in jeopardy.

Ted Simons: OK. Let's start with the basic. Can an employer prohibit marijuana use at work?

Rick Degraw: Correct. They can.

Ted Simons: They can.

Rick Degraw: Absolutely.

Ted Simons: Even someone who has a card carrying prescription, recommendation from a doctor?

Rick Degraw: It does not matter. The use of anything that will -- that could impair you at work can be prohibited by an employer.

Ted Simons: OK. So this would be similar to if I were on some sort of pain medication, that obviously I needed, obviously was prescribed, but gets me a little loopy and I'm not quite up to snuff, the employer can say you can't be here.

Rick Degraw: Yes, it will be the treated the same way.

Ted Simons: What if an -- what if a patient is under the influence while at work?

Rick Degraw: The employer has to be sure to understand that they do not have to allow someone at work while they are impaired. From anything. From alcohol, from marijuana, from drugs, from anything else. They do not have to allow them to be at work. And they should make sure their personnel policies reflect that.

Ted Simons: OK. How does all of this now tie in to drug testing at work?

Rick Degraw: Some employers require drug testing before you're hired. If someone tests positive for marijuana, you cannot automatically say, they won't be hired. What you can do is then inquire if they are a card-carrying individual, marijuana user, and if they are, you cannot prohibit them for testing positive.

Ted Simons: OK. So if you don't have the card, don't even try to get through that particular barrier.

Rick Degraw: That's correct. Because if you are not licensed, basically licensing, if you're not license with the card, and you're drug test and you test positive, you're not going to be hired.

Ted Simons: OK. Americans with Disabilities Act, how does that play into all of this?

Rick Degraw: It's interesting. The American -- Americans with Disabilities -- the American Disability Act defines all those issues that can affect an employee, and it is a very difficult issue. In order to comply with Americans with disabilities, you have to not automatically refuse employment for somebody to test positive, you have to make sure your personnel policies reflect the fact that you will not allow someone to work who is impaired, because the ADA does not allow someone impaired to operate machinery or get -- or get into any other situation that could be dangerous to themselves or others.

Ted Simons: OK. But let's say I'm a worker, and I have pain. And I've got the recommendation from a doctor to be able to use marijuana. And I don't want to use marijuana to get high or be impaired, but I do want to use the drug to the extent that it relieves my pain. What is the dynamic there? What's the balancing act?

Rick Degraw: The balancing act is very difficult and it's very complex. And the courts have not been clear on what can and can't be done. But for the most part, you're safe in saying that marijuana cannot be smoked at work or ingested at work. If it will have an impact that impairs you. Now, we all know at various times people that have taken a drink at work. Maybe it impairs them, maybe it doesn't. But that's a judgment call that the employer has to make. And their personnel policies have to be clear that impairment for any reason isn't acceptable.

Ted Simons: I was going to say, that better be pretty clear. An employer needs to be able to say this is the reason I thought this employee was impaired.

Rick Degraw: Right.

Ted Simons: OK. As the bottom line here, because it sounds like this is relatively for the most part commonsensical, in the sense that if it's something that impairs you, it's something that employers can handle. But what else do employers need to know? What's the bottom line?

Rick Degraw: Well employers need to know that they cannot discriminate based on the use of marijuana. They can stop employees from being disabled in any or impaired at work. They must change their drug and alcohol policy so that it reflects the law that allows medical marijuana to be in someone's system. But they do not have to allow them to utilize it at work. It comes down to common sense. If they're driving a car and they're going -- they're impaired, they should not be driving a car, or forklift, or be using an electric saw, or anything else. They can't be impaired at work, and that is the bottom line. But employers must be sure that their policies reflect that. Now, there is something in Arizona law, ASRS 23.493 called the alcohol and drug-free workplace premium. Employers actually get a reduction in their insurance if they do regular testing. If they still do that, even if some people test positive for marijuana because they're card carriers, they will still get their premium reduction. And so there are a few complex steps they have to go through. But for the most part they can't discriminate against users of marijuana who have a licensed card.

Ted Simons: Real quickly, last question. What question are you hearing the most from employers?

Rick Degraw: The biggest question from employers is, can they smoke at work? Can people use marijuana while they're at work? The answer is no.

Ted Simons: All right. Good enough. Rick, thanks for joining us. We appreciate it.

Rick Degraw: Thank you.

Rick DeGraw:SCF Arizona;

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