Medical marijuana patient wins employment discrimination suit in Rhode Island

 

This April 15, 2017 file photo shows marijuana plants on display at a medical marijuana provider in downtown Los Angeles. (AP Photo/Richard Vogel)

 

By Andrew Blake – The Washington Times – Wednesday, May 24, 2017

A Rhode Island fabrics company violated the state’s medical marijuana law when it refused to hire a card-carrying patient who couldn’t pass a drug test, a state Superior Court judge ruled Tuesday.

Christine Callaghan sued Darlington Fabrics Corp. for compensatory and punitive damages in 2014 after the company said her medical marijuana usage precluded it from offering her a paid internship position while she pursued a master’s degree at the University of Rhode Island. Ms. Callaghan promised not to bring weed into the workplace or arrive for work stoned, but Darlington said her failure to pass a pre-employment drug test prohibited her hiring, according to court filings.

In a 32-page ruling Tuesday, Associate Justice Richard A. Licht said Darlington broke the state’s Hawkins-Slater Medical Marijuana Act by rejecting Ms. Callaghan because she legally uses pot to treat migraine headaches in accodance with state law.

“Employment is neither a right nor a privilege in the legal sense,” Judge Licht ruled, but protection under the law is, he added.

While employers aren’t required to accommodate the medical use of cannabis in the workplace under Hawkins-Slater, the ruling noted, the law specifies that “no school, employer or landlord may refuse to reenroll, employ or lease to or otherwise penalize, a person solely for his or her status as a cardholder.”

Darlington had argued that it rejected Ms. Callaghan not because her status as a medical marijuana cardholder but her inability to pass a drug test. The judge called his claim “incredulous” in Tuesday’s ruling and took aim at its interpretation of the state’s medical marijuana law.

“This argument is not convincing,” he wrote, adding: “…it is absurd to think that the General Assembly wished to extend less protection to those suffering with debilitating conditions and who are the focus of the [act].”

“The recreational user could cease smoking long enough to pass the drug test and get hired… allowing him or her to smoke recreationally to his or her heart’s content,” he continued. “The medical user, however, would not be able to cease for long enough to pass the drug test, even though his or her use is necessary…”

More than 17,000 Rhode Islanders are currently members of the state’s medical marijuana program, the Providence Journal reported. While most of those individuals are patients who use marijuana to treat covered medical conditions, that number also includes people categorized as official “caregivers,” the newspaper reported.

“This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take,” Carly Beauvais Iafrate, a volunteer American Civil Liberties Union attorney and Ms. Callaghan’s legal counsel, said in a statement after Tuesday’s ruling.

Darlington plans to appeal the ruling before the state Supreme Court, defense attorney Meghan Siket told the Journal. Neither the company nor its lawyer was immediately available to comment Tuesday, the Associated Press reported.

Medical marijuana laws are currently on the books in 29 states and Washington, D.C., including Rhode Island, notwithstanding the federal government’s prohibition on pot.

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Companies need workers — but people keep getting high

By Danielle Paquette May 17 at 1:50 PM

Workers at McLane drive forklifts and load hefty boxes into trucks. The grocery supplier, which runs a warehouse in Colorado, needs people who will stay alert — but prospective hires keep failing drug screens.

“Some weeks this year, 90 percent of applicants would test positive for something,” ruling them out for the job, said Laura Stephens, a human resources manager for the company in Denver.

The state’s unemployment rate is already low — 3 percent, compared to 4.7 percent for the entire nation. Failed drug tests, which are rising locally and nationally, further drain the pool of eligible job candidates. 

“Finding people to fill jobs,” Stephens said, “is really challenging.”

Job applicants are testing positive for marijuana, cocaine, amphetamine and heroin at the highest rate in 12 years, according to a new report from Quest Diagnostics, a clinical lab that follows national employment trends. An analysis of about 10 million workplace drug screens from across the country in 2016 found positive results from urine samples increased from 4 percent in 2015 to 4.2 percent in 2016.

The most significant increase was in positive tests for marijuana, said Barry Sample, the scientist who wrote the report. Positive tests for the drug reached 2 percent last year, compared with 1.6 percent in 2012.

Although state laws have relaxed over the past four years, employers haven’t eased up on testing for pot, even where it’s legal.

California, Maine, Massachusetts and Nevada moved last year to legalize recreational marijuana, joining Alaska, Colorado, Oregon and Washingtona. Twenty-nine states and the District of Columbia, meanwhile, permit medical marijuana.

Under federal law, however, weed remains illegal — and employers in the United States can refuse to hire anyone who uses it, even if they have a prescription, according to the Society for Human Resource Management.

In the oral fluid testing category, which picks up on recent drug use, and is typically used to test workers on the job, positive drug tests for marijuana surged about 75 percent in the United States over the past four years — from 5.1 percent in 2013 to 8.9 percent in 2016, according to Quest. The data show smaller increases in urine and hair testing (a 4.2 percent increase over the past year).

Colorado and Washington, which became the first two states to legalize weed in 2012, showed the largest growth in positive tests. Urine screens that detected pot rose 11 percent in Colorado and 9 percent in Washington, the first time either state outpaced the national average since residents could lawfully light up a joint.

Quest noted that employers are also increasingly encountering job applicants who take other illicit substances. Tests that turned up cocaine increased 12 percent in 2016, hitting a seven-year high of 0.28 percent, up from 0.25 percent in 2015. Positive test results for amphetamine jumped 8 percent.

The culture change in pro-marijuana states hasn’t broadly altered the way employers screen applicants, said Sample, the scientist. “Ninety-nine percent of drug panels we perform in Colorado and Washington,” he said, “still test for marijuana.”

Companies such as McLane, where employees operate heavy machinery, keep testing for marijuana out of concern for everyone’s safety, said Stephens, the human resources manager.  The firm conducts follicle tests, which can catch traces of weed for up to three months after someone smokes.

She said the company saw “a big spike” is failed tests after pot became legal.

Meanwhile, Colorado’s legal marijuana business is booming. By 2016, Colorado had 440 marijuana retail stores and 531 medical dispensaries, one report showed last year — double the number of McDonald’s and Starbucks stores in the state.

Curtis Graves, the information resource manager at the Mountain States Employers Council, a business group in Colorado, said a small number of his members have dropped THC testing from drug screens, but others don’t have that option,

Truck and school bus drivers, for example, are required by law to prove they don’t have marijuana in their system before taking a job. Same goes for pilots, subway engineers and security guards. The Department of Transportation does not recognize medical marijuana as a “valid medical explanation” for failing a drug test.  

“Some employers are extremely worried about filling jobs,” Graves said. “Work that is considered ‘safety sensitive’ typically requires that test, and that’s not changing.”

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