The
Colorado Supreme Court decision in Coats v. DISH answered
some marijuana issues, but left some unanswered questions. The primary one
that marijuana states will have to address is likely how to measure impairment.
A discussion of the Coats decision is here. In that post, I
refer to a story regarding a race car accident, in which conclusions were
published regarding the extent of marijuana impairment.
Marijuana
acceptance is growing. Yahoo
reports this week that forty-four percent of Americans have
tried the drug. Ten percent admit to currently using it. They say
"Gallup's new poll conforms to an upward trend in which Americans have
become more liberal on the issue of marijuana legalization." It is likely
that more states will follow in relaxing constraints on marijuana. There will
be use, and unfortunately, there will be use on the road an in the
workplace.
The
issue of impairment will become important in "legalization" states,
and elsewhere as marijuana continues to gain acceptance. Currently, there are
four states that have "legalized" recreational marijuana use. They
are Alaska, Colorado, Oregon, and Washington. When this is discussed, the
District of Columbia is also mentioned, but that jurisdiction being under the
control of Congress seems less clear to me. The Business
Cheat Sheet reports that seven other states are contemplating
legalization. They include Arizona, California, Hawaii, Maine, Massachusetts,
Missouri and Nevada.
The
legalization complication remains federal law. Despite these states changing
their laws, "the federal government seems as though it still won't budge
on reclassifying cannabis out of its current Schedule 1 status." The
implication of that is discussed in Medical
Marijuana. Essentially, marijuana use is against federal law. The
recent decision of the Colorado Supreme Court in Coats supports that
in some contexts Federal
Law Matters.
In
recent WorkCompCentral coverage
of Coats, the subject of impairment is discussed. Stuart Sanderson is the
president of the Colorado Mining Association. He says that "since modern
science has yet to establish a test for detecting whether someone who used
marijuana in the recent past is still impaired by it . . .we choose to err on
the side of safety." That is, employers choose to have zero tolerance of
marijuana use by employees.
Dr.
Matthew Lee discusses the issue of marijuana impairment in his
blog. He notes that there is no congruence between marijuana impairment
and alcohol impairment. He explains that alcohol has "only one intoxicant"
which is ethanol. He says that it is therefore "relatively easy to measure
(ethanol) in the blood and extrapolate these measurements to degree of
impairment" of a particular person.
By
comparison, in marijuana there are multiple "psychoactive or intoxicating
constituents," although the most familiar is THC (tetrahydrocannabinol).
Some "are psychoactive, while some are not." He notes that the human
body does not process THC in the same manner as alcohol. Instead "THC from
marijuana is immediately taken up by the fat cells in the body, where it is
released slowly over time." However, that release over time and the
resulting presence in the blood is "generally non-contributory to
intoxication." That is, it can be detected after it is an intoxicant. Dr.
Lee says that this can be "anywhere from 3 days to a month or more,
depending on a number of individual parameters."
He
explains that the complexity of marijuana is a "prohibitive factor in
accurately establishing an absolute correlation between" a particular
level of THC presence and "intoxication." He reports therefore that
"the National Highway Traffic Safety Administration and the National
Institute on Drug Abuse have stated that marijuana impairment testing via blood
sampling is unreliable." There simply is no "reliable metric"
like the blood alcohol content (BAC) against which marijuana or THC presence
may be measured. This has not stopped some states from instituting "legal
limits for THC blood levels." He suggests that those levels could be efficacious
in determining presence, and therefore perhaps helpful states with "zero
tolerance policies."
Dr.
Lee contends that "to even begin," measuring marijuana intoxication
would require "behavioral tests." These would purportedly be similar
to the kinds of testing that are required for diagnoses of psychological
issues. He says that the "Diagnostic and Statistical Manual IV (DSM
IV)" is the "standard used by mental health professionals" to
identify "behavioral criteria to diagnose marijuana intoxication."
Dr. Lee says that there are states with testing to determine whether motor
vehicle operators are "under the influence and thus assumed to be
impaired." These may include blood testing, but are primarily base on
"what was observed," that is behavioral testing.
This
conclusion regarding THC testing has been echoed by the American
Bar Association, The
Denver Post, Popular
Science, and others. Though Popular Science also reports that despite
these complexities Colorado has enacted a impairment standard based upon THC
level in Nano grams, derived from a blood test.
Dr.
Lee's conclusion is that "there is no reliable method of quantitatively
determining if a person is impaired due to marijuana consumption" at least
as of 2010. He says that because of the complexity of marijuana's
"pharmacology" and "multitude of individual characteristics that
determine the impairment or intoxication due to marijuana consumption, it will
likely be a long time before we see this technology commercially available."
At
the SAWCA Annual Convention this week (07.15) there was an excellent panel
discussion of medical marijuana, moderated by Paul Tauriello, Director of
the Colorado Division of Workers' Compensation. As a side note, it was one
of several interesting panels this
week). The marijuana panel included Colorado's State Medical Director Kathryn
Mueller, an Assistant Attorney General from Maryland, Scott Curtis, attorney
Robert Luskin from Georgia, and a young man named Michael Newman.
Director Tauriello
brought everyone up to speed on the impact Colorado has noted from legalized
marijuana. The marijuana revenue last year was over $700 million and is
projected to be over $1 billion in 2016. For comparison, he noted that the
total of all written workers' compensation premium and calculated premium for
Colorado self-insureds is about $1.3 billion. Marijuana is projected to soon be
a bigger business in Colorado than workers' compensation. It seems likely to me
that there have been ancillary economic impacts in the area of tourism also
(just Google "marijuana Colorado tourism" and see how many sites are
suggested). Even Fodor’s has
some suggestions.
Dr.
Mueller argues that marijuana impairment can be measured, when the testing is
within 3-6 hours, and blood is the foundation of the test. She says a similarly
efficacious test is coming soon, which will use saliva instead. These tests do
not look for mere presence, as urine tests do, and so they are favored in the
context of impairment measurement. Conceding that the standards are not
universally accepted, she says that Colorado has enacted an impairment standard
and that it will be effective for defining impairment from this
substance.
She
cautioned that many employers already have impaired workers, from prescription
medications that are as hard to quantify. In other contexts I have heard that
alcohol impairment is arguably different in various people depending on the
nature of use, habitual versus occasional. This seems somewhat logical to me,
but I am no doctor.
Dr.
Mueller's broader point is that the benefits and detriments of marijuana are
not fully explored. She laments that study of the substance has been frustrated
by the federal laws against marijuana. Because of the federal Prohibition, she
explained, doctors do not "prescribe" medical marijuana, they
"recommend" it. Prescribing it would apparently put the doctor's
license at risk because it is a prohibited Schedule I substance.
According
to Mr. Curtis, this phraseology may be an issue in states like Maryland where
drug use can be a bar to workers' compensation benefits, unless
"prescribed" by a physician. So in Maryland, even if marijuana is
"recommended" the use would still result in a bar to benefits, should
an accident occur during its use, as it cannot be "prescribed" as
defined by statute. WCI
has reported that one workers' compensation system, in New Mexico,
must pay for marijuana even though it was not, and cannot be, prescribed.
Legally,
Robert Luskin assured the audience that employers need not accommodate, under
the ADA, employee's use of marijuana, even if it is recommended by a physician.
This, he explained, is because marijuana remains illegal. On the contrary,
however, he says that if an employee asks to use FMLA leave to treat an addition
to marijuana (or alcohol or other drugs) that he recommends clients afford that
leave.
Mr.
Luskin cautioned employers to be consistent. Noting that some occupations
experience difficulty filling positions with persons who have no history of
marijuana use. In other words, there are some positions in companies that
attract primarily applicants who use this drug. Thus, there is an inclination
to be more lenient on use for those scarce occupations. He cautioned that
waiving or reducing requirements for some employees or classes within a
company, but not for others, could lead to allegations of disparate treatment
and lawsuits.
Another
aspect of impairment was recently reported by WorkCompCentral regarding
a case in Texas. An employee there was killed in an automobile accident. It was
alleged to be work-related and this Texas employer was subject to workers'
compensation. A post-mortem test revealed THC, and the "THC in his body
created a presumption that he was intoxicated at the time of his death." Thus,
in this context, the burden was legally on the person claiming benefits (the
employee's survivors) to prove that the employee "was not impaired at the
time of the accident."
Proving
a negative is always difficult. The effect of this provision of Texas law does
not change the challenge of proving marijuana impairment. That determination of
how recently marijuana was used and how much equates to impairment will remain
a challenge. The Texas law, however, puts that burden on the injured worker
instead of the employer by use of this presumption.
I
also wonder how the issue of "second hand smoke." It is a subject
that has received ample coverage in the cigarette and lung cancer
discussions. Forbes
reports that there is a perspective that there is "no clear
link between secondhand smoke and lung cancer." But, TheWeedBlog and
others suggest that there is support that "exposure to secondhand cannabis
smoke under unventilated conditions produced detectable cannabinoid levels in
blood and urine."
For
now, is Mr. Sanderson's comment our paradigm? Will the establishment of
presumptions control this issue? Is the only solution in the current time to
"to err on the side of safety?" Is there an option beyond zero
tolerance in the workplace? Will THC Nano gram level restrictions/presumptions
such as Colorado's be an enforced paradigm despite the scientific doubts of
their reliability? Will marijuana "impairment" be measured with more
subjective testing (think of the field sobriety test administered by police officers)?
In the event of a positive workplace test, will the issue of "second- hand
smoke," or inadvertent impairment, have relevance?
There
will be many questions to answer if the predictions hold true and recreational
use spreads despite federal prohibitions. Changes in that federal prohibition
are being advocated, and that could also result in revisiting many questions as
issues like those presented in Coates and accommodation under the
ADA would then perhaps be decided differently. There seem to be many
issues on the marijuana horizon.
Update 07.24.15 FoxNews reports that a teen died after eating 6 times the recommended dosage, followed by a jump from a balcony. The news reports include discussion of impairment and the onset of effects when marijuana is eaten instead of smoked.
#workcomp
#workerscom
#SAWCA