THERE'S A GRAY AREA RIGHT NOW FOR MARIJUANA USERS -- WHILE THE
SUBSTANCE IS LEGAL FOR ADULT USE HERE --THEY COULD RUN INTO
PROBLEMS WHEN IT COMES TO GETTING A JOB, OR KEEPING THE
ONE THAT THEY HAVE.
TO EXPLORE SOME OF THE INS AND OUTS OF THIS I SPOKE WITH TWO
ATTORNEYS: MIKE CUTLER OF EVANSCUTLER AND MARYLOU FABBO, A
PARTNER AT SKOLER ABBOT & PRESSER, AS WELL AS JUDY
HERRELL, THE OWNER OF HERRELL'S ICE CREAM IN NORTHAMPTON.
>> WE'VE LET 3 GO FOR COMING IN HIGH ON THE JOB.
MOST RECENTLY WE HAD A GENTLEMAN COME IN STONED AND I SPOKE TO
HIM ONCE ABOUT IT.
HE SAID HE WOULDN'T DO IT AGAIN.
I SENT HIM HOME AGAIN THATDAY.
CAME IN AGAIN, GAVE HIM A WRITTEN WARNING AND SENT HIM
HOME AGAIN.
THE THIRD TIME HE CAME IN STRAIGHT, WENT ON BREAK, AND
CAME BACK STONED AND I HAD TO LET HIM GO.
>> AND SO DID YOU DISTINGUISH FIRST BETWEEN WHETHER OR NOT
THIS WAS ADULT USE MARIJUANA AND MEDICINAL BECAUSE THE LAW HAS
LAWS FOR USING IT MEDICINALLY.
>> IT'S NOT MEDICINALLY.
>> WHAT DO YOU THINK AS A SMALL BUSINESS OWNER COMING IN HIGH ON
THE JOB.
>> WELL, THEY'RE NOT ABLE TO -- WELL, I CAN'T SAY SOME OF
THEM BUT SOME ARE UNABLE TO FOLLOW IN WITH THE PUBLIC AND
FOLLOW-ALONG AND DO THEIR JOBS WELL.
FOR EXAMPLE, ONE OF THEM PUT A LARGE MILK SHAKE INTO A CUP OR
FORGETS, YOU KNOW, HOW MANY TIMES DID THEY FORGET WHAT, YOU
KNOW, THE FLAVOR OF ICE CREAM THEY WERE SUPPOSED TO GET.
THERE'S MEMORY ISSUES, AND WHILE USUALLY THEY'RE VERY NICE ABOUT
IT, THEY LAUGH A LOT, WHICH HAS ITS ADVANTAGES BUT IT ALSO HAS
ITS DISADVANTAGES.
THERE'S A SLOWNESS THAT STARTS TO OCCUR SOMETIMES, TOO, SO IT'S
A PROBLEM -- >> IT SOUNDS LIKE IT GETS IN THE
WAY OF PRODUCTIVITY IS WHAT YOU OBSERVED AND SOMETIMES DOLLARS
AND CENTS IF THEY'RE WASTING PRODUCT?
>> AND THEY'RE COUNTING CHANGE.
>> YEAH.
>> THEY'RE NOT VERY GOOD COUNTING CHANGE GENERALLY
SPEAKING SO WHEN THEY'RE STONED IT'S A LITTLE BIT WORSE.
I THINK A LOT OF IT MIGHT HAVE TO DO WITH THE FACT WE HAVE A
VERY YOUNG POPULATION AS OUR EMPLOYEES AND THEY'RE GREAT
KIDS.
THEY'RE NOT EVEN KIDS.
THEY'RE GREAT YOUNG ADULTS BUT WHEN THEY'RE STONED IT'S A LOT
HARDER FOR THEM TO INTERACT WITH THE PUBLIC.
>> AND SO RIGHT NOW WE'RE IN A BIT OF A LEGAL GRAY AREA WHICH
IS WHY WE INVITED ATTORNEYS IN TODAY TO HELP US UNDERSTAND WHAT
THE CURRENT LAWS ARE.
LET'S TALK ABOUT EMPLOYER'S RIGHTS KNOWING THAT ADULT USE
MARIJUANA IS LEGAL IN MASSACHUSETTS HOW, YOU KNOW, CAN
AN EMPLOYER FIRE SOMEONE FOR BEING HIGH ON THE JOB?
>> THERE IS NO INHIBITIONS EVEN WITH THE LEGALIZATION OF
MARIJUANA FROM AN EMPLOYER GUARANTEEING THAT HE'S GOT A
COMPETENT EMPLOYEE WHO'S NOT CREATING A RISK OF HARM TO
HIMSELF, FELLOW EMPLOYEES OR THE PUBLIC.
WHAT I HAVE A CONCERN ABOUT UNDER THE NEW REGIME ARE PEOPLE
WHO ARE BEING RANDOMLY DRUG TESTED WITHOUT ANY SUSPICION OF
THEIR BEING IMPAIRED, PEOPLE -- EMPLOYERS FINDING
METABOLITES OF MARIJUANA IN THEIR SYSTEM AND THEN THAT
EMPLOYEE BEING SUBJECT TO EITHER DISCHARGE OR NOT BEING HIRED
BECAUSE OF METABOLITES.
WE HAVE A NUMBER OF COURT CASES HAVING MARIJUANA --
>> WHAT EXACTLY IS A METABOLITE.
HELP PEOPLE UNDERSTAND.
>> WHEN PEOPLE GET DRUG TESTED THEY'RE EITHER TAKING URINE
SAMPLES, BLOOD SAMPLES AND IT WILL COVER MORE THAN ALL THE
OTHER ONES PUT TOGETHER AND WHAT THOSE TESTS REVEAL CAN BE THE
PRESENCE OF WHAT IS SO-CALLED METABOLITES.
EVIDENCE THAT MARIJUANA HAS BEEN WITHIN YOUR SYSTEM BUT THOSE
METABOLITES DO NOT EVIDENCE ACTIVE IMPAIRMENT.
THE ACTIVE BETWEEN ALCOHOL TESTING, BLOOD LEVEL AND URINE
LEVELS ISUANA TESTING IS ALCOHOL METABOLITES GETS OUT OF
YOUR SYSTEM VERY QUICKLY, WITHIN A MARY OF AN HOUR OR TWO SO THAT
IF YOU'VE GOT A -- >> MARIJUANA COULD BE DAYS TO
WEEKS -- >> OR UP TO A MONTH IF THE
METABOLITES WILL BE THERE WHILE ALCOHOL METABOLITES ARE IN YOUR
SYSTEM AND YOU'RE UP TO.08 PERCENT OF THE BLOOD-ALCOHOL
LEVEL OR OVER THERE'S A PRESUMPTION OF IMPAIRMENT.
WELL, IF YOU FIND MARIJUANA METABOLITES IN YOUR SYSTEM, IT
ONLY MEANS THAT SOMETIME WITHIN THE LAST MONTH OR 3 WEEKS YOU
CONSUMED AND THE LEVEL OF IMPAIRMENT ONLY EXISTS FOR LESS
THAN 2 HOURS AFTER YOU'VE CONSUMED SO WHAT I HAVE A
CONCERN WITH ABOUT THE NEW LAW ARE PEOPLE BEING TESTED WITHOUT
ANY SUSPICION THAT THEY ARE IMPAIRED AND FINDING OF
METABOLITES DOESN'T MEAN THAT THEY WERE IMPAIRED AND THEN
HAVING A JOB PROBLEM BEHIND THAT.
I SEE NOTHING WRONG WITH DRUG TESTING IF THERE'S BEEN AN
ACCIDENT OR SOMEONE'S CONDUCT IS POOR OR THEIR SPEECH IS
IMPAIRED.
SOME CONTEMPORANEOUS EVIDENCE OF IMPAIRMENT -- I SEE NO PROBLEM
WITH DRUG TESTING IN THAT SITUATION.
>> BUT ATTORNEYS IN THE AREA ARE ALLOWED TO DRUG TEST BEFORE
SOMEONE IS HIRED; IS THAT CORRECT
>> CORRECT?
SO HE AN EMPLOYER MAY DRUG TEST SOMEONE ONCE THEY'VE MADE A DRUG
OFFER AND THE DRUG OFFER WOULD BE CONDITIONAL ON A DRUG TEST.
IN MASSACHUSETTS RIGHT NOW IT'S ENTIRELY LEGAL FOR EMPLOYERS TO
SCREEN OUT APPLICANTS OR DISCIPLINE AN EMPLOYEE SIMPLY
BECAUSE THEY'VE USED RECREATIONAL MARIJUANA.
>> BUT DO YOU SEE THAT AS SOMETHING THAT'S IN CONFLICT
GIVEN THIS IS A SUBSTANCE THAT'S NOW LEGAL HERE AND AT THE SAME
TIME, YOU MIGHT LOSE A JOB OR BE PROHIBITED FROM GETTING A JOB IF
YOU'RE USING?
>> I'VE GOT NOTHING -- I SEE NOTHING WRONG WITH WHAT JUDY HAS
DESCRIBED AS IMPAIRED PEOPLE IN THE WORKPLACE.
SHE'S HAD PLENTY OF EVIDENCE OF THE PEOPLE IMPAIRED AND CAN TAKE
A JOB ACTION.
WHAT I FIND TROUBLING IS THE STATUTE -- THE NEW MARIJUANA
LAW, 94G SECTION 7 SAYS THAT ADULTS SHALL NOT BE PENALIZED OR
DISQUALIFIED UNDER THE LAWS OF THE COMMONWEALTH OF ANY MANNER
FOR POSSESSING OR USING AN OUNCE OR LESS OF MARIJUANA, AND IF
IT'S NOT PROTECTING ANYONE, IF IT'S NOT GUARANTEEING ANY JOB
PERFORMANCE THEN I DON'T SEE THE BASIS FOR THIS INTRUSION WITHIN
YOUR RIGHT TO PRIVACY.
>> FOR YOUR PART IT SOUNDS LIKE YOU HAD DISCUSSIONS WITH THESE
FORMER EMPLOYEES MULTIPLE TIMES ABOUT THIS BEHAVIOR.
HAVE YOU DEVELOPED ANY SORT OF WRITTEN POLICY THAT YOU'RE NOW
HANDING TO NEW EMPLOYEES?
>> WE KIND OF ALWAYS HAD IT.
WE JUST CHANGED THE NOMENCLATURE A LITTLE BIT.
WE HAD A POLICY THAT SAID YOU CAN'T COME IN HIGH AND YOU CAN'T
COME IN DRUNK.
NOW, WE'VE CHANGED IT TO WE KNOW THAT BOTH ALCOHOL AND MARIJUANA
ARE LEGAL IN THE STATE FOR RECREATIONAL USE.
THAT BEING SAID, YOU STILL CANNOT COME TO WORK UNDER THE
INFLUENCE.
>> IN YOUR OPINION IS THERE SOMETHING IN THE LAW YOU COULD
BE DOING THERE'S CURRENTLY NOT A LEGAL LIMIT FOR INTOXICATION
LEVEL FOR MARIJUANA.
THERE'S A STATE ADVISORY PANEL LOOKING AT THAT.
IS THAT SOMETHING THAT YOU THINK WOULD HELP THIS OR IS THERE
SOMETHING ELSE OUT THERE?
>> THERE ARE IMPAIRMENT TESTS THAT WILL DEMONSTRATE A LEVEL OF
IMPAIRMENT WITHOUT REGARD WHAT YOU'RE IMPAIRED WITH.
I THINK THAT'S THE FUTURE OF DRUG TESTING, WHETHER YOU'RE
IMPAIRED WITH A COLD MEDICINE, A LACK OF SLEEP, ALCOHOL OR
CANNABIS, THAT IF YOU'RE IMPAIRED AT A CERTAIN LEVEL
BASED ON THE HAND-EYE COORDINATION TESTING AND
IMPAIRMENT LEVEL TESTING WITHOUT REGARD WHAT IS THE SUBSTANCE IS,
THAT'S THE FUTURE THAT WILL PROTECT NOT JUST EMPLOYERS BUT
DRIVERS IN LAW ENFORCEMENT.
>> I AGREE THAT TEST SOUNDS VERY -- IT WOULD BE SOMETHING
THAT WE WOULD REALLY LIKE OUR CLIENTS TO TAKE ADVANTAGE OF.
WE FOCUS ON HAVING OUR CLIENTS TRAIN SUPERVISORS AND MANAGEMENT
IN DETECTING IMPAIRMENT.
WE THINK THAT'S A GREAT IDEA PARTICULARLY WHEN EMEMPLOYERS
ARE HESITANT TO TEST THE FACT THAT MANY WILL TEST POSITIVE
MAYBE LIMITING THEIR WORKFORCE.