July-August 2019

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12 PalletCentral • July-August 2019 orporate America was rocked by a recent decision in Arizona, where Walmart – one of the nation's largest employers – lost a discrimination case involving medical cannabis. The ruling was remarkable insofar as Walmart had been the successful defendant- employer in one of the first, landmark, federal cases after medical marijuana became legal in a number of jurisdictions. That case, Casias v. Walmart, was decided in the U.S. Court of Appeals and held that Walmart did not need to accommodate employee Casias' off-duty use of medical weed (which was legal under his state's medical cannabis law) under the Americans with Disabilities Act (ADA) because the drug remained illegal at the federal level. Marijuana has long been classified as among the worst illegal drugs, under the federal Controlled Substances Act. The new Arizona case, as discussed below, was among a number of new decisions across the U.S. where applicants and employees are starting to prevail in their cases – either because their state's medical cannabis law confers employment protections, or because they are suing under a state disability protection law that is interpreted more liberally than its state analog. Medical marijuana is now legal in 34 states plus the District of Columbia, and recreational marijuana is now legal in 10 states plus DC. The vast majority of American workers, consequently, live in states where use is legal (at least off-the-job). But while use may be legal, and impairment may be fleeting, positive drug tests linger … in some cases for weeks or even more than a month depending on a variety of factors (frequency of use, amount of use, gender, and even weight and metabolism). Another complication is that a half-dozen states now require employers to reimburse workers for the cost of medical cannabis, if it is used for treatment of worker's compensation injuries. This creates a situation where the employer may end up firing a worker who tests positive upon return to duty, because of cannabis the company bought for him weeks earlier! Other states are holding that, if a cannabis card holder tests positive but is not impaired, and is fired anyway, it is not disqualifying "misconduct" under state unemployment insurance laws. Further complicating the argument for the ADA employer defense of "direct threat to safety" regarding hiring or retention of a cannabis patient/employee, is a report showing workplace fatalities are down by an average of 19.5 percent in the 29 states and DC studied where medical cannabis has been legalized. The study, published in the International Journal of Drug Policy, may seem counter-intuitive, but has forced consideration of whether workers who can legally use medical cannabis are turning to that, rather than alcohol or opiates, to deal with chronic pain. C By Adele L. Abrams, Esq., CMSP LABOR & WORKFORCE Medical Marijuana Laws Prompt Changes to HR & Safety Policies

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