Missourians will soon be able to consume medical marijuana legally, but the passage of Amendment 2 does not protect employees from potential workplace consequences.
Federally, cannabis is classified as a Schedule 1 drug, along with heroin, LSD, ecstasy, meth and peyote, and not legal for medical or recreational use. Federal entities and federally funded entities, even in states that have legalized marijuana, approach the drug with a zero tolerance policy and have an obligation to terminate or discipline workers who test positive for marijuana.
Safety at hand
St. Joseph Transit receives federal funds and is bound to comply with federal law when it comes to marijuana.
“It’s unlikely that somebody could use medical marijuana legally and still drive for a public transit system,” Transit general manager Mary Gaston said.
The issue is one of safety, according to Gaston.
“Just like alcohol, which is perfectly legal, you can’t drive a bus with alcohol in your system,” Gaston said. “The problem with that may be that unlike alcohol, which leaves your system pretty quickly, marijuana does not.”
Cannabis stays in a person’s system for around 30 days after consumption, according to Sara Gullickson, CEO of cannabis developer and manufacturer Item 9 Labs Corp.
“There’s not really a way to tell whether or not someone is using, unless they’re completely impaired while they’re working,” Gullickson said.
There hasn’t been a positive drug test result at St. Joseph Transit in years, according to Gaston, but a spike in failed drug tests nationwide means the local transportation system will have to increase testing, anyway, as testing frequency is set by the Federal Transit Administration.
“Since the uptick has only just happened in the last couple of years since medical marijuana has become legal in some of the states in the country, I have to assume there’s some kind of cause and effect there,” Gaston said.
Right to terminate
All companies, whether federally funded or not, have the right to terminate an employee who tests positive for marijuana. The inaccuracy of urine testing means a worker could be terminated for consumption even if he or she was not affected at work. There is a more accurate testing method to detect if THC, cannabis’ active ingredient, is present in someone’s system — but it’s likely too invasive for HR departments, attorney and medical marijuana advocate Lance Davis said.
“Testing is better — more accurate — if it’s a blood test and not a urine test,” Davis said. “It’s called the ‘per se approach,’ which is similar to alcohol measurement. That’s an invasive act, to try to put an employer and employee through a blood test.”
In addition to a zero-tolerance approach and per se approach, there is a third one: the behavioral or observational test.
“Bloodshot eyes, slurred speech, that sort of thing could be indicative of impairment on the job. It’s kind of a common sense rule, but it’s also very subjective,” Davis said.
Education is key
Gullickson, whose company operates nationwide, said more education for employers is needed, especially in states that only recently legalized medical marijuana.
“Similar to taking other kinds of medicine that you would take for qualified medical conditions, there are options that you can take for medical marijuana that are not going to make you lethargic or completely impaired during the day,” Gullickson said. “You can microdose, there’s a lot of different ways that you can be responsible in your use for medication.”
Much of the issue of workplace issues comes from the discrepancy in state and federal law, according to Davis. He predicts medical marijuana will become legal on the federal level eventually.
“It’s a time of great change, but also it’s a realistic recognition that this is a medicine that some people find is helpful and they should be allowed to access it,” Davis said.