What used to be black and white is now nothing but gray as the Louisiana industrial community grapples with the new reality of medical marijuana. It’s a legal conundrum—state and federal laws are now in direct conflict—that will likely impact numerous corporate policies and procedures.
Many are taking a wait-and-see approach, since it’s still too early to grasp the full impact of the change. In August, some 5,000 Louisiana patients began receiving medical marijuana from approved pharmacies, a number that could eventually grow to an estimated 150,000.
Murphy J. Foster III, a partner at Breazeale, Sachse & Wilson in Baton Rouge, says industrial contractors and owners should act now, not later, to revise their internal written policies to reflect the new paradigm. Otherwise, they could be setting themselves up for a discrimination lawsuit down the road. The firm is currently assisting about a third of its contractor clients with amending their drug testing, medical, disability and disciplinary policies.
Foster, who also serves as general counsel to Associated Builders & Contractors-Pelican Chapter and Louisiana Associated General Contractors, says two alternating realities are clashing in the industrial space, much of it caused by the disparity between federal and state laws and differences among the states themselves. “Marijuana remains a prohibited Schedule 1 narcotic under federal law. That’s still out there; that hasn’t changed,” he says. “However, in Louisiana it must be treated like any other prescriptive drug.”
That creates a certain degree of legal tension, which is reflected in the very terminology being used—for example, marijuana isn’t officially prescribed, but is recommended by an authorized physician. “To be clear, there might be some contractors that decide the heck with it,” says Melissa Shirley, another partner at Breazeale, Sachse & Wilson. “They might say it’s still a violation of federal law, so we’re going to take a no-tolerance position just like we always have. But we feel the less risky approach would be to take it case by case, and make sure—just like with any other drug—that this person can do the job with this prescription.”
Should it end up in court as a disability discrimination suit, all bets are off. “It’s unclear how that would play out,” she adds. “There’s no Louisiana case yet because medical marijuana hasn’t been around long enough.”
Of course, all of the confusion would go away if the federal government changed its stance. “Fortunately, Attorney General (William) Barr has stated that it’s up to the states to act,” Foster adds. “It’s not a priority enforcement issue with his agency.”
Safety managers not happy
Sarah Taylor, CEO of Gulf Coast Occupational Medicine in Baton Rouge, says many industrial safety managers aren’t happy with the change, as they regard any loosening of the law as a threat to safety. “It’s not just medical marijuana that frightens them; it’s protecting their workforces from both prescription and illegal drugs,” Taylor says. “It’s a big area of concern for our industrial safety professionals. And this is just another thing for them to worry about.”
That’s because the new law represents a radical shift in thinking. “For decades, marijuana has been listed with Louisiana industry as a drug that you cannot use. You cannot test positive for marijuana and work. Now, we’re going to have to treat those people as though we would any other worker that takes a prescription medication. We’re going to have to assess whether or not they’re currently fit for duty.”
Tim Harris, site manager at Eastman Chemical Co. in St. Gabriel, says his plant has been wrestling with the issue, but is currently following federal law based upon the recommendations of its corporate medical officer in Kingsport, Tennessee. “Truthfully, I’m not an early adopter on this one,” Harris says. “I don’t want someone under the influence or even potentially under the influence operating the plant here. You’ve got the potential to impact the community. We want to make sure that everyone has all their faculties.”
Nonetheless, should an employee have a condition that requires medical marijuana, Eastman would first determine, on a case-by-case basis, if it might impact their ability to work. “It also depends upon the type of work they’ll be doing. We certainly don’t want someone who’s impaired on any kind of medication, legal or illegal, where they could impact the safety of others.”
Taylor agrees that it’s a sensitive topic for some. Nonetheless, if a potential hire has a recommendation for medical marijuana from a licensed physician, they will have to be considered. “We cannot use that as grounds not to hire them,” she adds. “I’m sure that there’ll be some companies that say medical marijuana is prohibited at their facility, but that’s not going to stand up in court.
“The state has deemed that medical marijuana is a positive thing for patients with certain diagnoses and it is now available whether we like it or not.” In short, a company is legally bound to change drug screen results to negative if patients provide valid physician recommendations, and it should be reported as a negative result to the hiring manager.
Taylor says technology is still struggling to catch up with the new law. While marijuana testing methods can detect exposure, they lack the ability to detect quantities, type of marijuana (medical or recreational) or time since last use. That differs starkly from alcohol testing. “We have a certain comfort level that we can keep alcohol out of our workplace,” Taylor says. “With marijuana, on the other hand, all we can tell is that you’ve been exposed to it, whether it was an hour ago or last week.”
Change could be coming soon, however. A new test might hit the market in a matter of months that can differentiate between medical and recreational marijuana. “That’s going to be huge,” says Taylor, “as it will prevent our workforce from getting a prescription for medical marijuana and thinking they have a green light to use all the recreational marijuana they want.”
In the meantime, supervisors in the field should be properly trained to recognize when an employee is under the influence—perceived gait instability, inability to make eye contact, inability to follow or give instructions, drowsiness, etc.—so they can be removed from the site for examination by a health care professional.