Happy Friday dear readers!  We’re about to delve into yet another long weekend, with Martin Luther King Jr. Day around the corner.

Well, before your focus on workers’ comp goes up in smoke (heads up, readers – that was a pun!) let’s talk about Marijuana (again).

I’m bringing you a story out of Delaware in which a Judge allowed a fired employee’s lawsuit to proceed against his employer based on Delaware’s Medical Marijuana Act.  The employee tested positive for marijuana following a company drug test.  He claims this violates the DMMA’s non-discrimination provisions, but the employer is claiming the act is preempted by federal law because marijuana is still illegal federally, for medical purposes or otherwise.

So why am I bringing this to your attention?  After all, we’re still enjoying our daily 12 hours of California winter sunshine, right?  Who cares what all those people do in Delaware – they don’t even have surfing!

Well, it matters here.  California doesn’t seem to be lit up (another pun – that’s your punishment!)  with such conflicts as yet – there’s a live and let smoke attitude so far.  But With marijuana now being decriminalized as per California law, what are employers supposed to do?

If an applicant’s doctor is providing modified duty which the employer can accommodate but is also recommending use of marijuana to manage his or her symptoms, is the employer supposed to bring the applicant back to work?

Say what you want about the restorative power of the noble weed, it can still impair one’s senses and reaction time and increase the odds of an injury to self or others, let alone property damage.  Do you really want the guy who is supposed to be strapping down the cargo on the flat-bed truck (or driving the forklift) smoking any time close to when the work is to be performed?

Unlike in Delaware, “puff puff pass” is still more like “puff puff? pass me your resignation letter” in California.

As of right now, no such law exists in California (that I can find anyways) and employers are still safe in “discriminating” against marijuana users.  However, the trend nationally seems to inch towards marijuana legalization/decriminalization.  I don’t think it will be too long before marijuana is treated by the federal government in a manner similar to alcohol or tobacco, and then that whole pre-emption argument turns to ash.

Remember – there was a time when marijuana was illegal under California law for any purpose.

If that ever becomes the case, employers will have a difficult decision to make – I have several files open now where applicants are self-procuring marijuana and shunning the opioids being provided industrially.

While your humble blogger is all in favor of employees being able to treat themselves with marijuana at their own expense, and not being jailed for the same, I am firmly against compelling employers to continue to employ such workers against their own business interests.  I would urge my beloved readers to join me in monitoring any potential legislation of this sort to ensure California does not go the way of Delaware.

Have a great weekend!