WILMINGTON – As the legislature weighs marijuana legalization this year, the Delaware State Chamber of Commerce heard from business, policy and legal experts on Tuesday about the concerns and questions tied to the change.
Tim O’Connell, a senior labor and employment lawyer at Seattle law firm Stoel Rives, has watched as legalized states like his Washington have had to contend with new legal challenges dealing with marijuana.
Despite the push for legalization in states nationwide, the Federal Drug Free Workplace Act is still in place and enforceable to businesses that have received federal grants or won federal contracts worth at least $100,000, O’Connell noted. Other industries covered by other federal safety acts, like commercial drivers, are likewise required to abstain from marijuana use.
“Clearly, you’re still entitled to have a policy that discusses drug use in the workplace,” O’Connell said.
Pre-employment drug tests are increasingly being barred for marijuana, especially in major cities like New York City, but the labor lawyer recommended that employers continue using them anyway. He also stressed publicizing a drug test, as a lack of awareness of one is frequently cited in recent court cases.
“Frankly, you get a better quality of applicants if they know that you’re going to have to go through a drug test. And there are still many drugs of abuse out there that you can screen out, notwithstanding the legalization or decriminalization of marijuana,” he explained.
Zero-tolerance policies will be harder to enforce with legalization, however, as without an effective spot test for marijuana it’s difficult to determine when usage occurred, O’Connell said. The legalization of marijuana may also make it difficult to fire someone with a “just cause” clause in their contract, commonly held by unions or high-ranking executives.
“It used to be that when you had a random test and someone came back positive for marijuana use, that was a really easy case, even under a ‘just cause.’ Now, not so much. If you have someone who is caught in a random test or post-accident test and has some level of marijuana detected in a resulting blood test, it’s not a disqualifier,” O’Connell said.
A variety of legal cases have been filed in recent years against employers over marijuana usage, claiming discipline or dismissal violated discrimination laws for medical conditions or public policy, O’Connell said. One in Illinois is even arguing whether a railroad worker’s observed drug testing penalty for usage was an invasion of privacy.
A new legal frontier will also be waged under the federal Americans with Disability Act and comparable state laws about whether employers need to cover the cost of marijuana as an approved drug to treat disabilities, O’Connell said. It’s still a question up for debate though.
“Just last week, a federal court in California, applying California law, tossed one of these cases and tossed it widely because it was plain that the judge didn’t buy the alleged disability,” he added, noting that the plaintiff reportedly had chronic back pain.
For those supportive of legalization, it wasn’t all doom and gloom from the chamber’s panel.
Gary Chandler, a former state legislator and the current vice president of affairs for the Association of Washington Business (AWB), the equivalent of the Washington state chamber, said that his organization initially opposed legalization. After its passage and marijuana companies began seeking the AWB’s help, Chandler said they couldn’t continue to resist and formed a committee to work with the businesses. It has since worked with marijuana companies in a fight over the regulation of crop smell with state officials.
“As far as employment, we have not seen the sky fall as we thought it would. I think that more employers have good policies, and they went back and looked at them,” he said.
In fact, Chandler said that some manufacturers were surprised to find that some of their best workers turned up positive for marijuana usage. They had to review their workplace policies to ensure that they were up-to-date and what they wanted when dealing with marijuana, with some choosing to administer a second test after a first positive, he said.
The legalization of marijuana has caused a lot of angst for many Washington employers, Chandler said.
“I will tell you in a state where marijuana is legal, it is difficult, especially for law enforcement and in certain manufacturers, to hire somebody when you drug test them,” he said, estimating a third of applicants may be disqualified in a zero-tolerance job.
Kevin Sabet, a senior drug policy adviser in the Obama administration and the founder of Smart Approaches to Marijuana (SAM), an evidence-based marijuana policy advocacy organization, noted that the marijuana sold today in legalized states is very different from the joints of the ‘60s heydays.
“Today’s marijuana is not just a plant, it’s something a lot stronger,” he said, noting the potency in some edible or smokable products today can be as high as 99% tetrahydrocannabinol (THC), the psychoactive substance of the drug.
Science hasn’t caught up to the new high-grade marijuana either, as most long-term studies have been done on much lower levels of the drug, he noted.
“When we talk about the revenues from marijuana legalization which we hear about all the time. We rarely talk about the other side of the ledger, which is the cost,” Sabet said, noting that New York recently touted proposed revenues that would equal less than 1% of its annual budget in its legalization push.
Chandler agreed that costs were often unappreciated but noted that marijuana tax revenues have steadily climbed in Washington, now eclipsing $1 billion annually. When he asked Washington’s state economist where the increasing sales were coming from, the answer was pretty blunt: Baby boomers rediscovering the drug or trying it for the first time.
All of the experts agreed that Delaware leaders should communicate with officials in states that have legalized marijuana and think proactively about how to regulate the industry if they choose to move forward.
“When you’re looking at it from a legal perspective, the devil is in the details,” O’Connell noted.