Pubdate: Mon, 19 Oct 2015
Source: Albuquerque Journal (NM)
Column: Jacobsen's Counsel
Copyright: 2015 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Joel Jacobsen

A CLOUD OF CONTRADICTIONS SURROUNDS POT

In N.M. and a number of other states, cannabis manages to be legal, 
illegal all at the same time

When I was growing up in Albuquerque in the 1970s, every teen knew 
two things about marijuana: it was illegal, and it was everywhere. 
That should have been a contradiction, but wasn't. Pot was easier for 
kids to acquire than beer. Cheaper, too.

Forty years later, weed remains ubiquitous. It provides one of the 
characteristic fragrances of Albuquerque's summer streets. But it's 
no longer entirely accurate to say it's illegal. Like nothing else in 
our society, cannabis manages to be legal and illegal at the same time.

Almost half the states, among them New Mexico, have legalized medical 
marijuana, according to the National Conference of State 
Legislatures. And yet, as far as federal law is concerned, cannabis 
"has no currently accepted medical use in treatment in the United 
States." That contradiction sums up our society's mix of attitudes.

A package of articles in the September 24 issue of Nature, one of the 
world's leading science journals, highlighted the paradoxes 
surrounding medical marijuana. For one, it's ridiculously difficult 
to learn anything about its safety and effectiveness. Nature reports: 
"Studying the drug requires researchers to grapple with an alphabet 
soup of agencies, including NIDA, the Food and Drug Administration 
(FDA), the Drug Enforcement Agency (DEA) and, until recently, the 
PHS." It literally takes years to get permission even to start a study.

The partial information blackout imposed by the federal government 
hasn't discouraged the medical use of cannabis. It's only ensured 
that we know less about its safety and efficacy than about any new 
pharmaceutical released to the market.

Further, the unlikelihood of securing any patents discourages 
pharmaceutical companies and profit-minded university labs from 
making the research effort. So we're stuck with the knowledge that 
cannabis contains scores of cannabinoids that interact with our 
bodies' innumerable cannabinoid receptors, with little immediate 
prospect of learning exactly how.

Some medical uses of cannabis are firmly established, in particular 
for chronic and neuropathic pain, and multiple sclerosis. Other uses 
are supported by strong, but not yet conclusive, evidence. But we've 
complicated the task of assessing realworld effects by dangling 
attractive incentives to game the system. Here's Nature again: "In 
the Netherlands, where recreational cannabis is widely available, the 
proportion of people accessing medical marijuana is less than 
one-tenth that of some U.S. states."

Our no/yes/maybe attitude is felt in the workplace, too. In New 
Mexico, medical marijuana is regulated by the Compassionate Use Act. 
In three recent decisions, our Court of Appeals held that workers 
compensation covers medical marijuana. When a worker is injured on 
the job and is lawfully enrolled in a medical marijuana program as 
treatment for the injury, the employer and insurer are on the hook 
for the cost.

On one hand, that's hardly a novelty in the law. Employers have long 
had to pay for pain-relieving drugs. The Court of Appeals' decisions 
describe workers first receiving what one treating physician termed 
"hyper doses of narcotic medications" before being referred to the 
medical marijuana program. There's something peculiar about a system 
that requires patients to start with the hard stuff and work their 
way down: oxycodone as a gateway drug for pot.

On the other hand, of course, the recent decisions and associated 
regulations mean that employers and insurers are now required to pay 
for something that is illegal under federal law. The Court of Appeals 
found no direct conflict with federal law, relying in part on the 
Justice Department's policy statements regarding its prosecution 
priorities. But those priorities could change with a new administration.

Meanwhile, New Mexico statutory and tort law provides that an 
employer may not fire an employee for making a workers compensation 
claim. Given the recent court decisions and regulations, that would 
seem to mean New Mexico law prohibits firing a worker for testing 
positive for marijuana if that worker is being treated with medical 
marijuana for a workplace injury.

But what is forbidden in one context might be obligatory in another. 
The federal Drug Free Workplace Act of 1988 requires federal 
contractors to police their workers' drug use. In a recent case that 
received a lot of attention, Presbyterian Healthcare Services 
canceled the contract of a physicians' assistant, Donna Smith, who 
tested positive for marijuana. Smith sued.

She was enrolled in New Mexico's medical marijuana program, but not 
as the result of a workers comp claim involving Presbyterian. Rather, 
she was being treated for PTSD resulting from her military service, 
according to pleadings in her lawsuit. Presbyterian defended by 
arguing that, as a federal contractor, the Drug Free Workplace Act 
effectively gave it no choice but to let her go when she tested positive.

There is a good deal more to the case than this barebones summary 
but, for employers, the important part is District Judge Nan G. 
Nash's order granting summary judgment to Presbyterian. Because it's 
a District Court opinion, it's not binding on other courts, but could 
be influential. The logic of Judge Nash's order extends to employers 
who are not federal contractors. It holds that a worker's enrollment 
in the medical marijuana program by itself provides no employment 
protection at all.

So, to summarize, firing a worker for marijuana use is apparently 
prohibited in some circumstances, effectively required in others and 
permissible in still others. Got that?

This is a fast-developing area of the law. But as long as we as a 
society remain undecided whether marijuana is a dangerous drug, a 
medical miracle or a recreational drug rather less dangerous than 
alcohol, our law is likely to remain confused and confusing.
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MAP posted-by: Jay Bergstrom