The medical marijuana bill that has stalled in Harrisburg, SB3, has many flaws. We've discussed these shortcomings, at length, here in the column. Yet there are some important protections for patients built into the measure that are quite innovative and forward-thinking.
On Monday, the Colorado Supreme Court issued a bizarre ruling that allows for medical cannabis patients to be fired simply for testing positive for THC metabolites.
Brandon Coats, who is paralyzed from the waist down and confined to a wheelchair, worked for Dish Network. He was subject to regular, random drug testing. Coats is a registered patient in Colorado, the state that many consider to be a bastion of protection for those seeking cannabis therapy. Yet he was fired.
Coats was not sitting at his desk with a joint in his hand. He maintains that he was never impaired during working hours. Still, the Colorado Supreme Court Justices, in a 6-0 ruling, hid behind federal law. Colorado offered no special non-discrimination provisions under their 2001 medical cannabis law. Employers are allowed to set whatever standards they like when it comes to drug testing. So the crux of the legal issue is what employees are allowed to do in their off-hours.
These two excerpts from the decision, care of the Denver Post, are the core of the ruling:
• "Colorado's 'lawful activities statute,' the term 'lawful' refers only to those activities that are lawful under both state and federal law."
• "Nothing in the language of the statute limits the term 'lawful' to state law. Instead, the term is used in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law. We therefore decline Coats's invitation to engraft a state law limitation onto the statutory language."
This puts medical marijuana patients in a real bind. They can find a job without such stringent drug policies or go without work. The decision also impacts recreational consumers in the Centennial State.
The real takeaway is that the ruling implicitly highlights the pressure building on Congress to definitively alter federal marijuana laws.
Employment isn't the only area where legal patients can face serious problems. Some have been denied organ transplants and others have been kicked out of pain management programs.
Parents all too often find themselves in the nightmare scenario of losing their children to state custody just because they utilize cannabis therapy.
Some states have recognized these problems and have built in language to more recent legislation offering some protections.
Pennsylvania's SB3 offers a fairly comprehensive approach. Here's the text of what passed the state senate 40-7 earlier this year:
Section 901. Civil discrimination protection.
The following shall apply:
(1) Medical cannabis, when used in accordance with this act, may not be considered an illicit substance or otherwise disqualify a patient from medical care.
(2) An individual may not be penalized in any of the following ways due to the individual's use of medical cannabis under this act:
(i) Denied custody, visitation or parenting time with a minor child.
(ii) Presumed to neglect or endanger a minor child unless the individual's behavior creates an unreasonable danger to the safety of the minor by clear and convincing evidence.
(3) A landlord may not refuse to lease or otherwise penalize a patient solely for having a medical cannabis access card or using medical cannabis in accordance with this act unless the landlord would lose a monetary or licensing-related benefit under Federal law or regulation.
(4) A school may not refuse to enroll or otherwise penalize a patient solely for having a medical cannabis access card or using medical cannabis in accordance with this act unless the school would lose a monetary or licensing-related benefit under Federal law or regulation.
(5) An employer may not discriminate against an individual in the hiring or termination of benefits or otherwise penalize the individual for being a medical cannabis access cardholder. The following shall apply:
(i) The employer may take an individual's status as a medical cannabis access cardholder into account only if the employer can prove the employee is abusing or misusing the employee's medical cannabis on the premises of the place of employment during ordinary hours of employment or if failure to do so would cause an employer to lose a licensing benefit under Federal law or regulation.
(ii) An individual's positive drug test for cannabis components or metabolites may not be considered by an employer unless the individual unlawfully used, possessed or was impaired by the medical cannabis while on the premises of the place of employment or during the hours of employment.
However the language above is not rock-solid protection. There are still many variables that could find registered patients get the short end of the stick because of the continued deference to federal laws.
For instance, colleges and universities across the country have denied medical cannabis patients the ability to consume their medication on campus. While young adults might be loading up a bong in the frat house, legitimately registered patients endure discrimination. The education institutions also hide behind federal laws and funding. The language above would continue to allow them that option.
These policies does not just apply to students. Don Dezarn, who worked in the Princeton University food services department for over a decade, was fired last year simply because he revealed that he was a registered NJ medical marijuana patient.
Because public housing is federally funded, severely ill residents who are also very low income may not be able to access the program without losing their place to live.
Another issue is what exactly constitutes "impairment." When Coats was fired for failing his drug test it was a standard urinalysis. Marijuana metabolites can stay in the system for more than 30 days after use. That does not mean a person is high for a month after they smoke a joint. Cannabis just happens to produce molecules that are detectable longer than any other drug.
Tests that measure nanograms of THC per milliliter of blood can better gauge use within the last few hours. But then we have to settle on what impairment really means. Cannabis also has a very individualized impact. One person might have little change in motor function another person will pull the covers over their head a la Maureen Dowd.
There is another angle; some employers are cool. If every single company had a zero-tolerance policy for pot, our unemployment rates would skyrocket. Many workplaces do not test or offer a more evolved view when it comes to off-hours toking. Even those with a drug testing program might offer understanding to medical patients or recreational consumers instead of the pink slip. When I worked at a ski basin in the Southwest, the hard-working stoners never seemed to get selected for random pee tests.
Of course, for Pa. residents this is a moot point at the moment. All patients are underground here and face tough penalties if caught. The safe access bill is being held hostage by the House Health Committee chairman Rep. Matt Baker (R-Tioga).
Despite a grassroots effort, being called out by TV talk-show host Montel Williams and massive support in public polls, Baker is remaining steadfast in not allowing the bill to have a vote. Baker, like the Colorado Supreme Court, is hiding behind federal law.
Although SB3 offers some progressive language, it is not enough.
It also means nothing if it never gets to Governor Wolf's desk.
Chris Goldstein is associate editor of Freedom Leaf magazine and co-chair of PhillyNorml. Contact him at firstname.lastname@example.org.