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 real-world 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 bare-bones 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.
Joel Jacobsen is an author and has recently retired from a 29-year legal career If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.