“A lot of the firefighters are saying, ‘I would rather work with somebody who smoked a joint the night before so that they could get a good night’s sleep than coming in hung over.’”
By Wesley Muller, Louisiana Illuminator
With medical marijuana now available to Louisiana’s workforce, employees have raised concerns that they could be fired or face other job-related repercussions for testing positive for a legal drug taken on the advice of a physician. A new state panel is searching for solutions to this potential problem that will protect workers and employers.
Three subcommittees of the Employment and Medical Marijuana Task Force met Tuesday to discuss different aspects of the issue and all arrived at the same question: How strictly can the state regulate the private sector with regards to medical marijuana?
Cannabis is now legal for medicinal use in 37 states and recreationally in 19 states. In 17 states, including several Republican strongholds, either lawmakers or courts have established laws that protect employees from discrimination or adverse consequences for using medical marijuana, according to the Marijuana Policy Project.
Louisiana’s task force, created through a study resolution authored by Rep. Mandie Landry (D), is looking at those states’ laws to draft proposals for the Louisiana Legislature to consider.
Task force member Troy Prevot, a physician assistant who conducts employment drug testing in the Baton Rouge area, said he believes most companies have no social or moral opposition to medical marijuana and just don’t want to be held liable for a worker who might be intoxicated or discrimination.
“I think many employers don’t really care,” Prevot said. “They just want to be able to protect themselves in certain situations.”
Some states’ anti-discrimination laws protect employees from being fired or penalized for using medical marijuana but allow employers to fire or discipline a worker who is under the influence of marijuana while at work.
Prevot said many workplace policies and government regulations are outdated and still based on the mistaken belief that a positive drug test is an indicator of intoxication. A person who smoked a joint a month ago can test positive on a hair follicle drug screen and be deemed intoxicated even though they are not, he said.
“What is ‘under the influence’?” Prevot asked. “I get worried about using that kind of language. It’s unfair.”
None of the available drug screening technologies can indicate a definite time of when a person consumed a drug, and the levels of drugs a laboratory detects cannot determine if a person is impaired because individuals metabolize drugs at different rates, he said.
“There’s nothing that actually, that I’m aware of, links impairment,” Prevot said. “I would be very worried about this task force trying to use levels to show impairment.”
In addition to creating the task force, Landry also authored a state law that prohibits employment discrimination against state employees who use medical marijuana. The law took effect August 1 but does not apply to the private sector.
Still, some private companies are already ahead of lawmakers in eliminating drug testing for cannabis.
Business lobby influence
Task force member Kevin Caldwell, who represents the Marijuana Policy Project, pointed out that workers have job options now that they haven’t had in decades. The nationwide labor shortage has allowed cannabis users to shop around for employers that will accommodate their medical needs.
In 2021, online retailer Amazon—the nation’s second largest employer behind Walmart—said positive tests for marijuana use would no longer disqualify people from jobs that the U.S. Department of Transportation regulates, such as truck drivers. Other companies with similar policies include Target, Kroger, Marriott, Goodwill Industries, Major League Baseball and the National Hockey League, Caldwell said.
The labor shortage has been particularly prominent in Louisiana where, according to the U.S. Bureau of Labor Statistics, a record 300,000 people left the workforce this year. Louisiana has approximately 65,000 medical marijuana patients, and that number has been increasing every year, Caldwell said.
Regardless of the labor shortage, task force members agreed that any recommendations they make will need the support of the Louisiana Association of Business and Industry (LABI), one of the most influential lobby groups in the Capitol.
“I think it will be hard to adopt if you regulate private business too much,” Prevot said.
Task force member Peter Robins-Brown, who leads the advocacy group Louisiana Progress, said he has never seen any legislation pass the House Committee on Labor and Industrial Relations without LABI’s blessing.
“I’m not going to go to House Labor on a bill where I know that [LABI lobbyist] Jim Patterson’s going to sit at the table and say, ‘We don’t want this,’” Robins-Brown said. “It doesn’t matter what I say. It doesn’t matter if I brought stacks of evidence and a hundred people to testify. If he sits down and says, ‘We don’t want this,’ we’re not getting out of that committee.”
Patterson did not respond to a request for comment Tuesday.
Prevot and Caldwell said they feel confident they can meet with Patterson and work out a compromise LABI would support.
Schedule I status
Caldwell said he expects federal authorities within the next few years will change the designation of marijuana as a Schedule I drug, a classification it shares with heroin, LSD and other substances with no accepted medical uses. Medical cannabis patients would then have the protections of the Americans with Disabilities Act (ADA). Until then, he said, medical marijuana patients will look to state governments.
The ADA protects employees from being fired or penalized on the basis of drug addiction or alcoholism, but it does not apply to medical marijuana because of its Schedule I status.
Currently, a worker who takes methadone, a powerful opioid, to treat a heroin addiction is covered under the ADA, but a worker who uses medical marijuana to treat a heroin addiction is not protected.
Recommendations for firefighters, veterans
The task force will also consider specific employment protection recommendations for firefighters and military veterans. One subcommittee is focusing its research specifically on those two groups based on feedback the Marijuana Policy Project has received.
“We should be prepared for what these firefighters are going to say,” Caldwell said, adding that many have told him marijuana prohibition has pushed some into abusing alcohol and other substances. “A lot of the firefighters are saying, ‘I would rather work with somebody who smoked a joint the night before so that they could get a good night’s sleep than coming in hung over.’”
Many firefighters and veterans have voiced their support for medicinal cannabis to treat conditions such as post-traumatic stress, Caldwell said, noting the high suicide rate among veterans.
The federal government has estimated 17 veterans take their lives each day, but an America’s Warriors Partnership study puts the number at 44.
This story was first published by Louisiana Illuminator.
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Photo courtesy of Martin Alonso.
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