“You don’t want to penalize people who are legitimately taking medical marijuana who aren’t impaired.”
By Victor Skinner, The Center Square
A Louisiana legislative task force held multiple meetings on Tuesday to explore and craft recommendations to resolve employment issues concerning medical marijuana.
Three subcommittees of the Employment and Medical Marijuana Task Force convened to discuss a variety of employment issues involving medical marijuana, from employment protections in other states to current testing options, to specific concerns for “safety sensitive” jobs like firefighters and first responders.
Members of the task force outlined legislation adopted in New Jersey, Indiana, Connecticut, Alabama and other states in recent years to protect employees from discrimination for medical marijuana use, as well as provisions to protect employers.
Kevin Caldwell, task force member representing the Marijuana Policy Project, noted that Alabama recognizes medical marijuana as medicine, but does not prohibit employers from drug testing, while Arkansas protections “do not require employers to accommodate ingestion in a workplace or an employee working under the influence.”
“Our neighbors to the north are just making sure employees are not coming in under the influence, and they’re not ingesting or using their medicine while they’re at work,” he said. “I think that is language we should most certainly be looking at in recommendations.”
Caldwell also highlighted legislation adopted in California this year that takes effect in 2024 that “does include workers in building and construction trades and instances where federal contracts, licenses or funding require otherwise, and positions requiring a federal background clearance.”
“I think this language is important, as well. I think it would protect a lot of the industries that have concerns about this, particularly the oil and gas industry,” he said. “You’re going to have federal codes that supersede what the state does.”
Laws in the District of Columbia also specifically cite exceptions from medical marijuana protections for workers impaired on the job, or if they work in a safety sensitive position, Caldwell noted.
“I think these are just some basic examples of where we can effectively go in the short term, and then possibly look down the road for further protections,” he said, adding that any change to marijuana scheduling on the federal level could change what’s necessary.
Task force member Troy Prevot, a physician assistant involved in employment drug testing, highlighted how testing for impairment will factor into any recommendations, and noted there’s numerous efforts to develop technology to do that.
“We have to somehow…deal with impairment,” he said. “You don’t want to penalize people who are legitimately taking medical marijuana who aren’t impaired.”
Another aspect is defining safety sensitive positions that may be exempted from protections, he said.
“There is a lot of discussion about what that means,” he said. “It’s a pretty broad definition.”
Caldwell noted that the task force will hear from first responders, firefighters and others in potentially safety sensitive positions who want to use medical marijuana in the coming weeks.
Task force member and workers compensation attorney Denis Juge suggested requiring employees to notify employers about medical marijuana use, both for safety and to protect employer rights.
“I am concerned that any law that enables a worker to have marijuana, what impact that would have on the defense of intoxication,” he said. “I think at the very least, the employer would be entitled to have notice from the employee that they are taking medical marijuana, so that absent that notice the employer would be able to raise the defense of intoxication.”
Peter Robins-Brown, task force member with Louisiana Progress, questioned whether the notice could be used to discriminate against employees, and whether the issue should be expanded to opioid users.
“I think that’s something that needs to be considered because right now we don’t have that,” Juge said.
Other discussions centered on accounting for massive employee shortages in multiple industries, and how any recommendations could make the hiring challenges worse, particularly for firefighters and first responders.
The meetings Tuesday are the latest in a series leading up to the 2023 legislative session spawned by a resolution authored by Rep. Mandie Landry, D-New Orleans. The resolution requires the task force to forward recommendations to lawmakers by February 1. The next session starts on April 10.
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