Pubdate: Fri, 26 Oct 2012
Source: Cape Cod Times (MA)
Copyright: 2012 Cape Cod Times
Contact: http://drugsense.org/url/sbOHSik6
Website: http://www.capecodonline.com/cctimes/
Details: http://www.mapinc.org/media/72
Author: Jon Offredo

QUESTION 3 CLOUDS WORKPLACE POLICIES

The medical marijuana question on the Nov. 6 ballot would allow 
people suffering from ailments such as cancer, HIV and multiple 
sclerosis to legally obtain the drug.

But the language in the proposed law does little to clarify whether 
marijuana should be treated in the workplace the same as a controlled 
substance like painkillers.

"It could have been written much more clearly," Kabrina Krebel Chang, 
an assistant professor of business law at Boston University, said. 
"But, it wasn't."

If it passes, Question 3 would allow patients to use marijuana as 
long as they have written approval from a qualified physician. 
Nonprofit dispensaries would be set up across the state, with at 
least one, but no more than five, in each county. There would also be 
instances where a patient could cultivate a 60-day supply of 
marijuana if access to a dispensary were limited by finances, 
distance or a physical incapacity.

Coreen Brinckerhoff, the executive director at the Cape Organization 
for the Rights of the Disabled in Hyannis, said she supports the 
ballot question and thinks it would provide a much-needed option for 
the afflicted.

"I feel that medically it has its benefits and can help a lot of 
people -- it could even help people get back in the workforce," she said.

Opponents of the question say that legalizing the drug medicinally 
would present a variety of problems for law enforcement and boost the 
drug's availability, they say.

"From my experience in most of the drug cases I've worked, heroin, 
cocaine, the busts we do, and the raids we make, there is almost, if 
not always, marijuana present," Dennis police Sgt. Cleve Daniels 
said. "It's not so much a gateway drug, but more like a companion 
drug in my opinion."

Even if legalized in the state, medical marijuana would still be 
considered a Schedule I drug under the federal Controlled Substances 
Act, possibly creating tension between employees who use the drug on 
their own time and employers who want a drug-free workplace.

Employees in other states who use medical marijuana, then fail random 
drug screenings and are fired for testing positive for THC, the 
chemical in marijuana, have little recourse in courts, Chang said.

Buried within the legislative text of the Massachusetts ballot 
question, is a key section -- 7D.

It reads, "Nothing in this law requires any accommodation of any 
on-site medical use of marijuana in any place of employment ... or of 
smoking medical marijuana in any public place".

But where it gets tied up is what employees do off-site, and that's 
where the majority of lawsuits Chang studied originate.

"None of these plaintiffs were smoking at work, or coming in stoned," 
Chang said.

That section of the text means that employers don't have to 
accommodate employees on-site, but the legal argument has been made 
by plaintiffs in other states that employers have to accommodate 
off-site use because the law specifically doesn't ban that.

"It's sort of like trying to prove a negative," Chang said. "If one 
specific behavior is excluded, they purposely didn't exclude the others."

Chang recently published a paper studying the management headache 
caused by medical marijuana and how it affects the employment relationship.

She found that in other states, courts did not tend to treat an 
employee who tests positive after using medical marijuana the same as 
an employee using a controlled substance, such as a painkiller.

And more often than not, employees who were using the drug legally 
and went on to sue their employers almost never won their case in 
court, she found.

Of the 17 other states, and Washington D.C., that allow the medical 
use of marijuana, only two -- Arizona and Rhode Island -- have 
language that explicitly protects the right of an employee to use 
medicinal marijuana, Chang said.

Should the question pass in Massachusetts, Chang said she foresees 
courts possibly having a difficult time interpreting the intent of 
the bill. In other states, she said, courts have sometimes had the 
benefit of looking back at the legislative floor debate and seeing 
how a bill's language was revised during the legislative process, as 
opposed to a law being posed by a ballot question.

"I don't see Question 3 as opening the floodgates of litigation ... 
but it puts the issue in the public's awareness. If it passes and 
people are getting registration cards, it's only a matter of time 
before something happens to them at work," Chang said.
- ---
MAP posted-by: Jay Bergstrom