Montana’s new medical marijuana law

Because this involves state law, let me start with my general disclaimer.  I am not an attorney and any advice contained in this article should not be taken as a legal opinion.  Please consult your attorney.  All laws are subject to interpretation by a judge and jury. So, that said, Montana’s revised medical marijuana law will go into effect July 1, 2011, leaving many employers unsure of what they can and cannot do, leaving many previous cardholders up in the air and driving most caregivers out of business.  Montana Governor Brian Schweitzer let the new law go into effect without his signature.  He was more interested in making changes to the first law, not a complete revamp, which this law will do.

Recently, the Montana Cannabis Industry Association filed suit to block  implementation of the law and is actively distributing a petition.  At the same time, Montana Attorney General, Steve Bullock, has stated that the law is not unconstitutional and will fight any petitions trying to rescind it.  So, stay tuned, sounds like there is more to come. Senate Bill 423 and House Bill 43, the legislation that created the new law, repealed a 2004 referendum and has imposed more restrictions on the medical marijuana industry by making it harder for patients to claim “severe/chronic pain” to qualify for a medical cannabis card and cutting all the profit out of any caregiver enterprises. The new law allows a caregiver to grow medical marijuana for up to three people (previously, that number was unlimited), but for no money other than the purchase of their state license to do so.  The law states that a caregiver may not accept “anything of value, including monetary remuneration.”

Many lawmakers believed the previous law was not working. Under that system, 30,000 people were give cards to legally use marijuana for medical purposes and 5,000 caregivers were given the rights to legally grow and sell marijuana to those cardholders.  The Federal government said enough and raided many of those caregivers in 2011–an operation that took place in 13 cities in Montana and resulted in no charges to date. Thirty percent of card holders are in the 18 – 30 year-old range and 80% have a card because of chronic or severe pain. The state will issue new cards to the 30,000 current holders and the new cardholders will need to meet and follow the new rules.  People who have old cards will remain “legal” until their card expires.

In the mist of all of this controversy and confusion, employers need to decide how to ride the wild horse of Montana’s changing medical marijuana law.  Can an employer fire someone for the use of marijuana if they hold a card?  What about drug testing?  Does our benefits program have to pay for this type of care?  What about ADA and workers’ compensation issues?  Lots of questions and lots of confusion.
This article is not going to be able to answer everything.  That scope is too big, but I hope to give employers some general guidelines.

The law states:

“Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a professional licensing board or the department of labor and industry if: (a) a registered cardholder’s use of marijuana impairs the cardholder’s job-related performance ;

It appears that an employer has the right to regulate job performance, which makes perfect sense.  But make sure you use well documented, objective criteria to demonstrate that impaired job-related performance.  And, I’d recommend calling it exactly that, “impaired job-related performance.”

The law also states that is does not permit“any person, including a registered cardholder, to operate, navigate, or be in actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of marijuana.”  It goes on to regulate activities in healthcare facilities and schools and school property (sports activities, school buses, etc.).

Further, it states that employers do not have to cover costs associated with medical marijuana in their benefit plans, nor do they have to make accommodations for the use of marijuana by a registered cardholder.

All good news for employers—these statements should give employers some guidance.  If you believe someone is under the influence of marijuana, you don’t have to let them operate a vehicle or heavy equipment (on the other hand, you had best have some good, concrete behavioral descriptions of what lead you to believe they were under the influence).  It you have a drug testing program, you have the right to test under those policies.  But, make sure you understand your own guidelines and that law (another article).

It can get tricky too; if you know someone has a card and uses marijuana for a legitimate medical condition, you don’t have to make accommodations to let the smoke marijuana while on the job (boy that makes sense—good job Legislature).  However, on the other hand, you may very well need to make accommodations for their related medical condition under the ADA (American’s with Disabilities Act).  Watch out for that trap.

The law specifically states, “Nothing in [sections 1 through 23] may be construed to:

(a)    prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or (b) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or discrimination pursuant to 49-1-102.

So, the law states contract, does that mean employer handbooks and policies too?  This is where you need to consult your attorney.  It appears I may be able to fire someone for the use of medical marijuana and they cannot use Montana’s wrongful discharge law (a whole other article) against me or sue me for discrimination.  Maybe true, maybe not.

One thing I have learned in 20 plus years of human resource work in organizations is that just because a law appears to give you the right to do something, it’s not always a good idea to do that.

Here is my take, when employers terminate someone just because they can, it leaves a bad taste in the public’s mouth, especially with Montana’s Anaconda Company history (that’s a dead giveaway that I grew up in Butte, MT).  So, even if you believe you can, I’d recommend you have the documentation and reasoning centered on a lack of performance.  If the person is using marijuana and has impaired performance, you should be able to document that.  Besides, a smart attorney (and I say this at the risk of making the dumb ones smarter), will not focus on the marijuana use in their suit, but the related medical condition, which is likely protected by law (again, another article at another time).

The law also says that a tetrahydrocannabinol (THC) level of 5 ng/ml (that’s the chemical in marijuana that gets people “high”) may be charged with a violation of 61-8-401, while DOT drug testing uses 15 ng/ml.  Again, something to consult your attorney on if you perform drug testing under DOT regulations or Montana’s drug testing law.

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