West Virginia lawmakers have been exploring the gaps between legalization of marijuana products for medical purposes versus the desire to assure employees aren’t impaired in the workplace.
Legislators from the Joint Standing Committee on the Judiciary spent more than an hour of interim meetings in Morgantown on Tuesday morning with two experts on medical cannabis and employment law.
West Virginia lawmakers, like counterparts in other states, may grapple with various conflicts in laws meant to allow people with chronic medical problems to gain relief through medical marijuana products up against other policies meant to assure employers maintain safe workplaces.
“I think Americans want people to be able to use marijuana for medicine. I think they also expect employers to prevent people from operating a motor vehicle over the public roads if they’re potentially impaired and to take steps to make sure people don’t get hurt,” said Nancy Delogu, an attorney specializing in drugs and alcohol workplace issues with the Littler Mendelson employment law firm.
Delegate Mike Pushkin, D-Kanawha, asked how lawmakers could best address gray areas in the law. “So where would you suggest that the Legislature place its focus or better provide clarity to let both cardholders and employers know where they stand?”
Aaron R. Lopez of Political Capital LLC said many states are challenged to define what being impaired truly is, Lopez said — “giving a name to it.” He said that requires an assessment of what best fits for West Virginia “to make sure that your employees and employers have a safe workplace.
“Impairment is impairment whether you’re impaired from alcohol, whether you’re impaired from lack of sleep, whether you’re impaired from medical cannabis or from other drugs and opiate use, and I think trying to find a definition or a standard that could trigger, possibly, a test or something that an employer can lean on would help. It would also help the employee understand if I come into work and I’m meeting these factors I could get in trouble as well.”
Delogu noted that West Virginia law does, generally, protect anyone from discrimination or retaliation because they are certified to use medical cannabis products. Also, employers can prohibit workers from performing any task considered to be life threatening while under the influence.
“So the employers would love some clarity on whether you have to wait for them to come to work impaired before you prohibit them from performing that life-threatening task or if you can simply say ‘Look, if you test positive for marijuana, we are not going to put you in that role that is life-threatening,'” she said.
States have a range of policies on that issue, she said, outlining safety-sensitive duties such as working with flammable materials, overseeing workplace childcare, operating motor vehicles or handling equipment.
“You can either kind of clarify the positive test sufficient to allow an employer to prevent someone from working on any task the employer thinks could be life-threatening or providing a laundry list of positions that you think would be inappropriate for medical marijuana users to hold while they they’re actively using their medication,” she said.
Even so, conflicts may continue, said Lopez.
“The state has, once again, made this a legal program for patients in the state — and so we’ve got to make sure if you’re made it legal for them to use now all of a sudden you’re saying ‘Yeah, but now you’re not going to be able to work.”
“Yeah, that’s exactly the tension there.”