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Weed Regs in Waiting: Medical marijuana law leaves foggy path for employment policies

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The waiting game is afoot as companies seek how best to proceed with drug-testing programs, as the state’s medical marijuana regulations remain a work in progress.

The Missouri Department of Health and Senior Services is in charge of shaping the regulations necessitated by last November’s passage of Amendment 2 – a process not expected to be complete until June. The amendment permits state-licensed physicians to recommend medical marijuana for patients with certain illnesses and medical conditions.

In the meantime, uncertainty abounds for how the medical marijuana system will proceed later this year and beyond. Questions from business clients of drug testing and insurance companies are centered on drug testing policies and what, if any, changes will be required of employers as the system rolls out.

“We’re just essentially saying now is the time to write your policy,” said Angela Garrison, vice president of operations at Tomo Drug Testing. “You don’t want to be playing catch up.”

Tomo has connected employers with resources it uses for policies, she said, but acknowledges it’s currently a confusing landscape for employers.

Garrison said Tomo has received calls from businesses on a weekly basis since voters approved Amendment 2. The company also issued a letter in November to its Missouri clients to give an overview of the amendment. Most of Tomo’s 2,000 clients do business in Missouri, she said.

The letter signed by Garrison explains that marijuana remains a Schedule I drug, defined by the Drug Enforcement Agency as having no accepted medical use and a high potential for abuse. It is illegal for use by any safety-sensitive employee – one whose job makes them responsible for their own safety or of others – subject to Department of Transportation drug testing. That includes workers operating heavy machinery and driving vehicles.

The letter cites a portion of the law, stating, “nothing in (the law) permits a person to operate, navigate or be in actual physical control of any dangerous device or motor vehicle, aircraft or motorboat while under the influence of marijuana.”

Medical marijuana regulations issued by the state will cover licensing and certification for facilities connected with testing, cultivation, dispensing and manufacturing, along with registrations for qualified patients with serious illnesses or medical conditions and primary caregivers.

Employer-friendly
Chip Sheppard, a lawyer with Carnahan, Evans, Cantwell and Brown PC, is well versed in the language of Amendment 2. He is a board member with New Approach Missouri, which organized the ballot issue expected to annually generate $18 million in taxes and fees for veterans’ programs and $6 million for local governments. Operating fees for the state are estimated to be $7 million annually.

He characterized the amendment as “very employer-friendly,” and said it does not change the current employer/employee laws regarding workers showing up intoxicated.

“They can still be disciplined, terminated, whatever. Employers can still terminate someone if they fail a marijuana drug test,” Sheppard said of those who may carry a state-issued medical marijuana patient card.

Garrison agreed the amendment appears to be employer-friendly, but she added companies can never go wrong with a thorough drug-testing program in place.

She noted two types of drug-testing programs: one that is mandated, including DOT workers, and another that provides employers some leeway to craft their programs. She said marijuana is generally detectable in the urine for three to 30 days after use, depending on the frequency of usage. For quicker results, oral fluid testing has been known to detect within one day of use.

For companies currently utilizing a nonmandated drug-testing program, Garrison said not to make any changes based on uncertainty of what Amendment 2’s regulations might be several months from now.

“Keep doing what you’re doing, is really what we’re saying at this point,” she said. “It’s not saying you can’t drug test anymore. It’s really just what’s going to happen after you get those positive results and making sure you have all your ducks in a row that you know how to appropriately handle that situation.”

Numerous large employers, including Springfield Public Schools, BKD LLP and Greene County, were contacted by Springfield Business Journal and did not return messages or declined comment about their drug-testing policies regarding medical marijuana.

CoxHealth spokeswoman Kaitlyn McConnell only released a statement from the health care provider: “It is still too early to know all of the changes that may be required by the passage of Amendment 2. CoxHealth is examining best practices across the country to determine its plan regarding various aspects and implications of this legislation. Fundamentally, however, the health system’s commitment to quality and safety – for both patients and employees – remains the same.”

A similar statement was provided by Mercy: “Like other employers across the state, Mercy is in the process of reviewing the many facets of medical marijuana. It’s too early in the process to predict any possible changes to our policies, but as always, Mercy’s priorities will be the safety and well-being of its patients and co-workers.”

Safety first
Workplace safety also is a major commitment for Missouri Employers Mutual, said Larry Lambert, the Columbia-based firm’s associate general counsel.

“That’s kind of our lifeblood and we abide the law on that, standard drug policies and what best practices are for people,” he said, noting MEM insures about 18,000 businesses.

“Making sure we’re able to keep our workers safe under the new law is our main concern now.”

Lambert said the amendment is going to be a significant change in mindset, adding there’s still a lot to be discussed about its implementation by the Missouri Health Department.

“From a workers’ compensation standpoint, there’s a lot of questions around it with how is an employer supposed to know if somebody’s impaired,” he said. “If they are using, what are they supposed to do with that from a workplace safety standpoint?”

The insurance company has been telling employers it’s still seeking answers on how the medical marijuana program will eventually be administered.

“We’d rather let them know that there’s a lot of uncertainty right now to try and get them a definitive answer,” Lambert said. “The best thing we’re able to do right now is give them the time frames, and let them know that we probably have at least a year before they’re going to see any single use cases happening in Missouri.”

When those cases come along, Sheppard said employers should research the type of marijuana the employee is using and the amount of its THC content.

“Some of the THC content on a lot of this medicine is so low that no one’s going to be impaired that takes the low dose,” he said.
 
One question Tomo has been regularly fielding: Should companies stop testing for marijuana? The answer is no, Garrison said.

“Keep testing. It’s OK,” she said. “We feel strongly that a drug testing program is a safety program in your workplace.”

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