The Times West Virginian

October 23, 2013

Some legal implications of medical marijuana remain unresolved


Times West Virginian

— The drive to legalize marijuana in West Virginia received another endorsement last week when the Silver-Haired Legislature issued a position paper urging that the drug be available by prescription for medicinal purposes.

The advocacy group notes that 20 states and the District of Columbia have legalized marijuana for use via prescription since 1996, and it claims the record is fairly clear that the concerns of those opposed to legalizing pot have not materialized.

“In many cases, it is a more effective and less dangerous option than pharmaceutical drugs,” the position paper stated.

“The proposed reform would make it possible for adults battling illnesses to access marijuana safely and legally, without have to deal with an illicit market dominated by criminals.”

One would have to be hard-hearted to deny anything that would ease the suffering of cancer patients and others living with chronic pain.

But there are issues that have yet to be debated about medical marijuana in West Virginia. Indeed, even in the states that allow medical marijuana, many legal areas remain muddy and unresolved.

If medical marijuana becomes legal in West Virginia, would employers be forced to abandon drug-free workplace policies to accommodate an employee who obtained a medical marijuana prescription?

Some states with medical pot laws have passed legislation exempting employers from dropping drug testing. In several states, courts have upheld the termination of workers who tested positive for marijuana but claimed they were unfairly fired since they had a prescription for the drug, writes Adam Santucci, a blogger and an attorney who is an expert in labor law in Harrisburg, Pa.

“For example, would an employee terminated for using marijuana legally be approved for unemployment compensation benefits?” Santucci asks. “Will the Equal Employment Opportunity Commission enter the fray with an opinion on the implications of the Americans with Disabilities Act? It may be some time before these issues are wrapped up.”

We also would raise the question of liability. If an employee is using alcohol, drinking and driving on the job would land an employer in jeopardy if that worker was impaired and caused an accident.

Laws are clear that driving with an alcohol level at .08 or higher is a crime.

But marijuana traces remain in the bloodstream much longer than alcohol. Even if an employee had not smoked medical marijuana that day, what will be the legal limit on marijuana in the bloodstream?

What level would the Legislature set? Is there a medical consensus?

We anticipate that trial lawyers advocating for their clients will claim any level of pot in the bloodstream means that the employee was impaired. And until case law on the issue becomes settled, it leaves employer and employee in a gray legal limbo.

To be clear, we are not saying that the issue of medical marijuana should not be debated in West Virginia. We believe we are a long way from answering these peripheral yet difficult questions about the real-life impact of approving medical marijuana.

— The Register-Herald