Safety and OSHA News

Worker argues medical pot should exempt him from discipline

A worker involved in a crash with a workplace vehicle claims his status as a medical marijuana user should exempt him from discipline.

The employee of Denver’s Department of Safety was on duty and driving a city vehicle when he was involved in a crash.

He was immediately given a drug test that came back positive.

Denver’s City Attorney, David Fine, acknowledged the case and said they were looking into it. “It raises a lot of interesting and complicated questions,” Fine told Denver TV station CBS4.

Denver employment law attorney Emily Hobbs-Wright predicts the employee’s medical marijuana status probably won’t protect him from discipline.

Courts in other states have viewed medical marijuana the same way they view other prescription drugs: They may be legal, but that doesn’t mean you can be impaired by them while on the job.

Hobbs-Wright says employers will have to determine, using relevant medical standards, what constitutes marijuana impairment.

New Jersey just enacted a medical marijuana law, bringing the number of states with such statutes to 14.

How should businesses balance medical marijuana use and workplace safety? Let us know in the Comments Box below.

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Comments

  1. I ask that any employee that operates a fork lift or machinery inform me if they are taking any prescription that may affect their ability to perform their tasks safely. I have also been told by HR that were not allowed to ask people if their on anything because it is protected information by the HIPPA act. Shouldn’t be this hard…

  2. It doesn’t make any sense to evaluate these issues only after an accident – it’s expensive and potentially deadly – but it seems like that is the only time employers are allowed to question employees prescription drug use. I’m not surprised that HIPAA applies in these situations, but it seems like there should be a better way. There really is no other option for safety managers?

  3. “It raises a lot of interesting and complicated questions”. Nonsense! The employee was impaired. And like more and more Americans, doesn’t want to take any personal responsibility.

  4. Dennis Forsythe says:

    I posted this on another of these posts

    What happened to the Employer having to provide a Safe Environment for all employees? If people are permitted to work and they are “Altered” as is said in most Emergency Rooms then the Employer is not providing a “Safe Environment” for other folk. There is nothing wrong with taking prescription drugs when under a Dr’s care. As it is the Employers responsibility to provide a safe work place it is also an employee’s responsibility to report to their supervisor any medications they may have to take and if there is an effect on their work performance the employee has a responsibility to report that. This is not and issue for debate Safety is everyone’s responsibility and if you have ever lost someone to a careless procedure or to a situation where a participant is impaired or altered or intoxicated whatever you want to call it then look at what is fair all round.

    False readings can be substantiated or dismissed and the employee has a right to medical care. Drs can for the most part give a good accounting as to what a medication will do to the person short term and long term. What is wrong with some clear thinking many jobs if not done properly can cause serious injury and even death…….this is that simple but it has to be addressed seriously. Just as it is important for people to be offered Employee Assistance when they have Drug/Alcohol problems or other things that affect their work but there is no excuse for any type of negligence that causes problems

    It seems to me that the above employee was impaired even though under a Drs care…….Drs care does not negate the responsibility we all have and the company has. Impaired is impaired……It is necessary to inform folk upon employment or of a change in the rules that mandate the reporting of the above with a signed statement of the above should protect the company there is also the company need to keep the employes medical information in confidence. Arrangements (to assist the employee) can be made in most of these occasions

  5. Dr. Michael Savage says:

    @John

    There is no way of knowing if the employee was impaired at the time despite the drug test. Marijuana stays in the system for up to 30 days so all the drug test proves is that he had smoked it within 30 days. Therefore it seems unreasonable to punish him as though he was smoking at work when the test only shows what he admits: that he smokes medical marijuana in his own home. I don’t think it’s as cut and dry as you’d like to think.

  6. Doctor:

    He tested POSITIVE based on the cut-off levels. You can argue impairment with any drug. But you have to have some guidelines to begin with.

  7. Dr. Michael Savage says:

    @John

    I’m unsure what you mean by “POSITIVE based on the cut-off levels.” Cut-off levels for what? The amount of THC? The length of time having smoked marijuana? Where in the article do you see this information?

    From what I see the article doesn’t mention what kind of drug test he took. Most tests only tell whether you have THC in your system or not. They can’t measure how much THC you had or when you last smoked. Some tests can tell you more but I don’t believe there is a test that can tell a time frame for when you last smoked. If you know something about the test that I don’t please let me know.

  8. I have to agree with Dr. Michael. Studies have shown that THC can stay in your system for up to 30 days. Testing POSITIVE for marajuana does not mean that the person was under the influence at the time of testing. The article above does not say that the individual was “impaired” at the time just that he was tested POSITIVE. A vehicle accident can and does happen to people who are not impaired by medication and to assume that the THC in their system was the cause of the accident is incorrect.

    However, any persription drug that causes altering effects of the mind can lead to accidents. It is up to the doctor and the patient to heed the medication warnings and follow the perscription guidelines. If someone who operatates a vehicle, machine or any other function that could cause harm to themselves or others must communicate that to HR and state that for medical reasons they cannot perform those duties until their medical condition has changed. In the case of medical marajuana it should only be while the person is under the influence. If that person has to use this type of medication continuously throughout the day then they obviously cannot continue to do their jobs and should be reassigned to a desk job (and taking mass transit to work) or out on disability.

  9. Dr. Daniel says:

    Good morning all,

    Currently available marijuana testing will not determine whether otr not the employee was “impaired” at the time.

    This will be a very interesting case to watch, as the legal precedents are looming on the horizon and cases liek this will likely be the foundation for future decisons regarding impairment.

    Fact is, testing today is archaic. Althoguh the police claim to have a roadside test for determining whether someone is under the influence of marijuana, I personally doubt that it has any relevence to whether or not they are impaired by the drug.

    Many people do not understand how marijuana effects someone in the first place. It stimulates the CNS (central nervous system) while relaxing the major skeletal muscles…that in and of itself should not hinder your driving…may reduce road rage or even end it, but I am doubtful it caused a wreck in any case.

    I will be looking forward to following this case and others like it.

    David

  10. Was he on his way to the 7/11 store for munchies? If he admitted that he was under the influence of the “Medical Marijuana” at the time then he is likely to be disciplined for his actions. If there is no admission then it is near impossible to determine when he last used the THC, hence no drug disciplinary action can be taken. Unless the Dept of Safety has an auto accident policy on the books. Seems like they should, it is the “Dept of Safety”.

  11. How long will it be before medical meth is approved? I’m tired…can I get a little shot of medical cocaine to pick me up? I’m upset about something a co-worker did…can I get some medical heroin to relax me a bit? Give me a break! Fire his butt…and make an example of those that can’t pass urinalysis.

  12. Is an Employee responsibility, if they know they work around machinery (main focus), then they
    should inform, whether prescription medicine or marjuana medicine the HR Dept or Supervisor to cover their ass and their position, and with Manager should be reviewed if safe to continue to work in current position. If employee doesn’t report that they are a medicine user by Dr., then employee should be held responsible for accident/incident. And prescriptions (most hard drugs) are for home use, Drs can prescribe lightly dosage for during day so person can function, if not, they should be on disability to begin with.

  13. Almost all THC tests will reveal the level of THC found – interms of nanograms per deciliter. The level directly correlates to the level of impairment. Much in the same way that a breath alcohol test gives a level and if you are above a certain level you are deemed to be impaired. The science really is there.
    Also, it is extremely rare (extremely!!) for THC to be found above the cutoff levels much more than 72 hours after smoking pot. Yes it does and can happen but 30 days is highly unlikely.
    The courts have repetedly ruled that medical marijuana use can be regulated by an employer in much the same way that an employer can regulate the amount of alcohol in your system while working. It is all bout a safe working environment.

    Not too many sticky issues I can see…….

  14. Rebecca Sturdevant says:

    There is a valid sensitive test–blood specimen for THC [active] level. DOT states that any marijuana metabolites in urine are “POSITIVE” test and driver may not drive. DOT also states that the employee MUST report prescription drugs and the employer must have a release from the medical examiner that the medication may be used while driving. Marijuana is NOT a prescription, it is an illegal drug, despite what the “medical marijuana” proponents state. Stand firm. You can’t be impaired at work.

  15. I just wanted to make a comment on the road test used by police to see if someone is “under the influence.” I was at a trail ride several years back shooting photos, a small business I had at the time, when a Houston Police Officer ask if he could use me to demonstrate how he could tell if someone was under the influence to a group of people he was talking to. It was dark so he shined his flashlight into my eyes. He told them to notice how my eyes were still and focusing straight ahead. He said if I was under the influence of a substance, my eyes would not be still but jittery and moving from side to side, not focusing straight ahead. I thought that was a bit of interesting information and one I hope I never have to use as a Safety Coordinator.

  16. Interesting case. I thought that MRO’s are supposed to contact the person with the positive test before reporting, and if the person claimed a medical reason for the positive result, doesn’t the MRO have to confirm with the subject’s personal doctor. When confirmed doesn’t the MRO have to show the test as negative?

  17. Dr. Michael Savage says:

    @TMB

    The majority of tests do not reveal the level of THC found. Most tests simply show a positive or negative result of being over or under the 50 ng/mL level. And in terms of the commonly used urine test: THC doesn’t generally get filtered through your kidney to your urine until days after inebriation. Blood tests can give you a more accurate account of the level of THC in you blood stream, but it is unlikely that by the time any worker is able to be given a blood test the THC levels can really give an accurate assessment of his level of impairment.

    @Jason F

    There have rarely if ever been any attempts by any persons or organizations to legalize meth or heroin for medicinal purposes. Both of these drugs are far more dangerous and addictive than marijuana and to compare them to one another is extremely unfair. There are many examples of scientific evidence of the usefulness of marijuana in the treatment of pain, nausea and appetite in relation to many diseases. Many prescription drugs given for the same treatments often have much harsher side effects that actually make them less effective than marijuana. The same cannot be said of meth or heroin.

    @Rebecca

    Marijuana IS in fact a prescription drug in many states already. It is an illegal drug only in terms of recreational use and many states are relaxing their laws as we speak. I very much agree that we should not be impaired at work, but we cannot demonize those who behave responsibly.

    You would probably be surprised by the large amount of successful people in society who are regular users of marijuana. There are certainly abusers but in my experience the worst substance abusers in our society are alcohol users. Of course, being impaired on any substance in a work environment is unacceptable. However these are the exceptions and we cannot toss out the baby with the bath water or we risk causing undo harm to responsible users who benefit society by their cautious use of a fairly benign drug, while leading normal lives and paying taxes.

  18. Rebecca Sturdevant says:

    Marijuana is NOT a legal drug. There is NO prescription for marijuana in any state. The states which have medical marijuana statutes allow a small quantity to be possessed without being subject to state criminal penalties. The user gets a “get out of jail free card” NOT a prescription. Under Federal regulation the MRO is specifically directed that marijuana is a POSITIVE drug test result–no exceptions, not even for prescription forms of THC like Marinol.

  19. Dr Savage,
    Your statement is patently false. Instant test may only show Positive or Negative but any decent vendor/employer is going to then send the sample off to a certified lab where a level will be determined with absolute certainty via GC/MS.
    Many studies have verified that THC is indeed filtered through Kidneys into Urine within an hour or less of smoking. Can also be detected in saliva and lab verified.
    I’m not trying to vilify anybody here – I am just pointing out that Medical Marijuana use can be regulated by an employer in the same manor as Alcohol. Also – there exists good solid scientific methods to determine levels and therefore impairment.

  20. Dr. Michael Savage says:

    TMB,
    I will concede that more concrete results can be obtained through more stringent testing methods, but I won’t concede that more stringent testing will necessarily be able to determine impairment levels. Due to the way that THC stores itself in fat cells and is slowly released into the body I don’t believe even the most stringent tests will necessarily differentiate between habitual use levels and levels that would show inebriation at the point of testing.

    I think what is most important is that we start reconsidering the policies that we currently have in place, whether it be MRO, OSHA or US Federal laws, to take into account the changing dynamics of state level marijuana laws and use.

    We are moving into a future society where marijuana will more than likely become an acceptable form of medication and recreation. We need to consider people’s merit not on whether or not they use the drug, but how it effects their job performance and their lives. Most people can use the drug safely and we need to make sure we don’t make any harsh judgments on people based solely on their use of the drug.

    I think a no exceptions rule in this case is most likely unfair to this worker and his family. Many lives have been ruined by misunderstanding the drug and it’s effects on users. I hope that we can all agree that a more objective approach to the subject is taken by all parties so that laws and reforms can be put in place that are more fair to users and employers who hire users of marijuana.

  21. It’s interesting that it has taken so much effort to get to (what I feel is) the core of this issue: Are there reasonable ways to regulate marijuana prescriptions in the workplace, and how does this figure into the larger picture of safety? According to TMB there is actually a way to test the presence of the drug with some accuracy, which means it could possibly be assessed with existing drug policies. Assuming that is true, the next step leads to OSHA at a federal level. Acceptance of prescription marijuana is a state issue, but Rebecca is right in pointing out that OSHA still governs at a federal level – at least in most cases. California, for instance, has a State OSHA Plan but Colorado – the state mentioned in the above article – is still governed federally. Would that make the situation more harsh for violators? I’d be curious to see if any OSHA body – state or federal – has issued a statement on the issue.

  22. Hi there ,
    I am a Medical Marijuana user or whatever you want to call me ,I’m also a Safety Coordinator/ Security
    Manager for a Billion Dollar corp. here in California. Rebecca you are quite wrong, when ever I go for a random drug test, the MRO will call me and tell me I’m positive for Marijuana they ask me if I have a prescription and DR.s recommendation I say yes and send them a copy of it, when my employer gets the results they are negative. You might as well get used to it because times are a changing !! And just for the record I’m never impaired when I’m at work. TMB : Marijuana cannot be regulated in the same manner as Alcohal, you cuoldn’t get enough THC in your system to read 0.08 and if you applied the 50 ng/ml baseline for Alcohal there wouldn’t be anyone left to work !!

  23. Theres a nice discussion regarding the same issue over at: http://www.workerscompinsider.com/

    I agree, times are a changin’ and this will not go away anytime soon. I know a couple of regular users and I agree, they use it responsibly and hold good jobs, volunteer, and have families. The “reefer madness” perception of the drug is way outdated.

    On the same note, if I suspect anyone out on our shop floor is high, we will address it under the current laws to protect us as a company, even if we dont agree with them.

  24. Rebecca Sturdevant says:

    There are “functional” alcoholics also. Many tasks can be done adequately while impaired. The concern is that the addict is not able to respond to emergencies or make the best judgements. Scientific evidence of impairment from marijuana is unequivocal. The impairment is not the same as impairment from alcohol, but that does not make it less dangerous.

  25. Dr. Michael Savage says:

    Rebecca:

    There are many functional drinkers and smokers. Drinking alcohol on your own time does not necessarily make you an alcoholic, nor does smoking marijuana make you a pot head. Throughout the entire course of humanity people have been drinking alcohol to relax and to celebrate, and we have been able to separate those times from our work. Of course, if someone is addicted, it would more than likely affect their work and this should be dealt with, but testing positive for THC does not an addict make.

    No one in this discussion has suggested that being impaired by alcohol or marijuana while doing your job, especially jobs involving heavy machinery, is acceptable or desired. My only suggestion was that we need to be careful in how we deal with a new class of people who smoke marijuana at home for medical or recreational reasons. Treating every pot smoker as an addict is not the way to go, in the same way we don’t treat all drinkers as alcoholics.

  26. To John:
    The testing for marajuna is for canabanoids not the ingredient that you get the high from. As the doctor stated these canabanoids stay in your system for 30 days. This does not mean that you are high for 30 days when you smoke pot.
    Here is an analogy. Say yeast stayed in your system for 30 days yet it is not the ingredient in alcohol that produces the high. Say they had a test to determine wether you had yeast in your system. Would it be fair to say that since your last drink was 7 days ago you tested positive for yeast you were still under the influence when tested?

    Here are some statistics for you to ponder!

    Alcohol related deaths per year- 30,000
    Marajuna related deaths per year- 0
    Marajuna related deaths for the last 10,000 years- 0

    Lives ruined by alcohol related use- Millions
    Lives ruined by marajuna related use – 0
    Lives ruined by marajuna related use for the last 10,000 years – 0

    Children and young adults (collage age) alcohol related deaths per year- 5,000
    Children and young adults (collage age) marajuna related deaths per year- 0
    Children and young adults (collage age) marajuna related deaths for the last 10,000 years- 0

    Alcohol is legal and marajuna is not! Makes perfect sense to me.

    Alcohol is man made. Marajuna is made by God. Who do you trust????

  27. Dr Mike Savage you are my hero. I wish the rest of society had your education with respect to marijuana.

  28. to paduke:

    There are only 2 statistics in your whole arguement the 2 menitioning alcohol deaths. Deaths from pot could probably be determined if you searched deep enough, I don’t have the time or inclination to do that. I, however know there are some number of deaths each year due to the use and/or abuse of drugs. some of which I would bet money were pot related. since most of the stats group drugs all together it would be had to definiatively state the there are zero deaths related to pot. as far as lives ruined by pot, I personnally know of 1 member of my family whose life is really screwed up, lost just about everything, due to his abuse of pot. so that arguement is incorrect.

    I am not advocating either way but, those who have said things need to change, they do in some measure. A person who has a perscrption from his doctor of medical use and is not impaired on the job, should not lose their job. That is my only opinion on the subject.

    I just hate those people who try to make statistics up to support their own positions. Not only is it morally wrong, but most people with any kind of sense can see through it. It reminds me of an old Mark Twain quote. “Better to be quiet and be thought of as an idiot, than to open your mouth and remove all doubt.”

    Sorry if that sounds rude, but never really been too much on politically correctness stuff.

  29. Dr. Michael Savage says:

    PADUKE:

    I appreciate your enthusiasm but I have to agree with HHF. Marijuana has certainly been the cause or major contributor to many deaths in the past 10,000 years.

    I believe what you are referring to is the fact that marijuana cannot cause an overdose death. Which is something few drugs, including alcohol and even aspirin, can lay claim to. A chief reason I believe it is safe enough to be legal.

    However claiming that a drug with such powerful mind altering effects cannot cause death or ruin lives is a foolish assertion and weakens your argument. Marijuana is one of the safest recreational and medicinal drugs out there right now when used responsibly, but claiming that it is 100% safe is in itself not responsible.

    We need level headed marijuana proponents out there, so be sure when arguing your point to have your facts straight or you only weaken the strong case that already exists.

  30. I believe that everyone should be aware that if they go to work impaired on anything, they have the resposibility to inform their superiors and to be removed from any tasks that may be adversely affected by that impairment, for the duration of the impairment.
    From my own experience, the length of impairment, or the “high”, from marijuana only lasts about 3 hours, no matter how much you smoke. This article didn’t say the employee was actaully high at the time of the incident, just that he tested positive for the metabolized by-products (which is what the tests actually measure) of marijuana. Some people can store these products in their system for up to 30 days, though I find this unlikely. Again, from my own experience, I can pass a random drug test after four days of being clean and not doing anything to try and alter the test results. I have failed them in 3 days, but I have passed all of them after just 4 days.
    I do not work under the influence of any drugs, with the possible exception of a prescription drug, but I also know from experience that this prescription does not alter my ability to do my job safely and efficiently. My employer is fully aware of what the prescription is, as I volunteered this information. they are also aware after 4 years on the job that this prescription has not altered my ability to do my job.

  31. I really feel that the HIPPA laws are putting employees in danger and making companies liable (if employees are using recreationally or medically). I feel that with any company that has fleet vehicles or any machinery that could be potentially dangerous, anyone on any type of medication should be required to report that medication to HR and standards should be put in place as to whether that employee should be allowed to operate vehicle or machinery. Companies should be able to protect themselves. I also feel that with a person knowing that it is required to report, I am not in a perfect world where everyone will do so, but if they don’t they will loose their jobs or the company will not be liable if caught or injured that this will cut down on the use of drugs, especially now with the economy in such poor shape and jobs being scarce.

  32. # Jason F Says:
    February 2nd, 2010 at 12:20 pm

    How long will it be before medical meth is approved? I’m tired…can I get a little shot of medical cocaine to pick me up? I’m upset about something a co-worker did…can I get some medical heroin to relax me a bit? Give me a break! Fire his butt…and make an example of those that can’t pass urinalysis.

    Methamphetamine is legal in the United States. It can be prescribed by a doctor for stubborn cases of obesity or ADHD. It is marketed under the brand name Desoxyn.

  33. Annehearsall says:

    I agree with JasonF. Laws are Laws. Break the Law, pay the penalty. Putting someones life in jeopardy because you need your fix is competely unacceptable! MJ is a mild drug (so they say) but it is still a drug. I had an 18 year old friend die from driving under the influence of “your mild drug”! If it could kill him driving a vehicle and seriously injure 2 other friends in his vehicle, imagine what it could do in a workplace! Would you trust a bridge built by potheads? NOT I FRIEND, NOT I!!!! Get a grip.

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