can a dr fire you for using cbd oil

Virginians can still be fired for using recreational marijuana; Medical use protections take effect July 1

RICHMOND, Va. (WRIC)-On July 1, Virginians ages 21 and older can legally possess small amounts of marijuana but you can still lose your job for using it recreationally depending on your employer’s drug policy.

While new employment protections for certain medical cannabis users are taking effect this week, some fear they are too vague to keep people out of court. Still, advocates hope the policy shift will build momentum towards more sweeping protections.

Joe Mirabile, vice chair of the Virginia Professional Firefighters Association‘s legislative committee, said products like CBD appeal to many of their members dealing with PTSD, anxiety, suicidal thoughts, joint pain and irregular sleep.

“A lot of our members struggle and right now they are self-medicating with alcohol. We have these natural products that are now safe and regulated that we could use but policies aren’t keeping up with the state code,” Mirabile said.

Mirabile said decades of no tolerance policies at fire departments have kept medical cannabis of all kinds off limits.

“Personally, I would love to try those products but I’ve held off because I don’t want to risk my job,” he said.

A new law taking effect July 1 will not ban drug screening during the hiring process but it will prohibit an employer from discharging, disciplining or discriminating against an employee if they show a valid, written medical certification from a doctor, according to bill sponsor Del. Dan Helmer (D-Fairfax).

“If they are taking legally prescribed medicine from their clinician then it does protect them so long as they are not impaired, the same as any other medicine,” Helmer said in an interview.

Mirabile said the policy shift could be a game changer but concerns remain. He said a workgroup is trying to clarify enforcement policies before firefighters start using medical cannabis.

“There is gray area in there. There are loopholes,” Mirabile said. “My message to our members has been, ‘yeah you’ll probably win a lawsuit and get your job back…but do you really want to spend two years in court trying to do that?’ So why don’t we get ahead of this and put policies in place to protect you.”

8News Legal Analyst Russ Stone said the bill allows employers to take adverse action against staff members who use or possess any form of cannabis at work.

Stone said the problem is the bill doesn’t clearly define standards for impairment.

“It means they still need to be careful in their behavior at work because there could be a dispute between them and their employer as to whether they were impaired or not, which would be decided in court,” Stone said. “In Virginia, employers have a wide degree of discretion when hiring and firing people.”

That issue is compounded by the fact that there is no breathalyzer-like tool for detecting marijuana intoxication in real time.

“One of the main challenges around this marijuana policy and others as a whole is that we don’t have a reliable drug test to determine if somebody is actually high,” Helmer said.

While the bill specifies that these employment protections are for “medical cannabis oil,” Stone pointed out that a urine screening would not be able to differentiate between that and leafy marijuana.

It’s legal headaches like this that prompted Republican Del. Tony Wilt (R-Harrisonburg) to vote against the bill, despite his support for medical cannabis.

“I still think zero tolerance is the best policy,” Wilt said. “Even though the bill presumes to have protections for businesses, to me, there’s enough loopholes there that could potentially hamstring the employer.”

In part due to federal marijuana prohibition, employers involved in federal contracts or the defense industrial base sector are exempt from the bill.

Still, Wilt doesn’t think the state should be mandating drug screening policies for any business.

Meanwhile, Virginia NORML Executive Director Jenn Michelle Pedini wants to see the General Assembly go even further and expand protections to all adult consumers.

“We are seeing more and more states enact legislation to prohibit drug screening for cannabis use post legalization and we definitely would like to see that happen in Virginia as well,” Pedini said.

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You Can’t Fire Cannabis Patients Just for Using Cannabis, Massachusetts High Court Rules

In what appears to be a first-of-its-kind ruling, the Massachusetts Supreme Judicial Court on Monday said that employees can’t be fired simply for using medical cannabis. Such terminations, the court said, violate state antidiscrimination rules.

“I can’t stress this enough, it’s the first case of its kind in the country.”

The opinion came as a shock to many, as every other state to consider the issue has decided that employers may indeed fire workers who test positive for cannabis—even if those employees are abiding by state law. In Colorado, for example, the state Supreme Court in 2015 held that a state law barring employers from firing workers for legal, off-duty behavior didn’t apply because cannabis is still illegal under federal law. California, Washington, Montana, and others have issued similar rulings.

In Massachusetts, it’s now a different story.

“I can’t stress this enough, it’s the first case of its kind in the country,” Dale Deitchler, an employment attorney and expert on cannabis in the workplace, told MassLive. “The court created law.”

While the opinion could be a game-changer for medical cannabis patients, it’s far from an endorsement of on-the-job consumption. Employees can still be fired for using cannabis before or during work, or for failing a drug test if consumption isn’t part of a doctor-approved medical treatment. And workers with safety-sensitive jobs, such as pilots, truck drivers, and others, can still lose their jobs if they test positive for cannabis.

For patients like plaintiff Cristina Barbuto, however, the new precedent means no longer having to decide between medicine and employment.

Barbuto, a state-legal medical cannabis patient, was offered a job at Advantage Sales and Marketing (ASM) in 2014. When the company said she’d need to take a mandatory drug test, she replied that she would test positive for cannabis because she uses it to treat her Crohn’s disease, an autoimmune disorder. (About 40% of all US workers are subjected to drug tests during the hiring process.)

According to court records, Barbuto consumes cannabis two or three times per week, usually in the evenings, to help stimulate appetite and maintain a healthy weight. She assured ASM she wouldn’t consume either before or during her workday.

At first, Barbuto’s supervisor told her that her medical use of cannabis “should not be a problem,” the court opinion says. He later called her to confirm the same. But after Barbuto submitted a urine sample and completed her first day of work, an ASM human resources representative informed her that she’d been terminated for testing positive for cannabis.

“We follow federal law, not state law,” the representative said, according to court records.

Barbuto filed suit.

Don’t assume the ruling means you can wake and bake before tomorrow’s commute.

In Monday’s decision, the state’s high court concluded that the matter essentially boiled down to whether allowing Barbuto’s offsite cannabis use constituted a reasonable accommodation for her medical condition.

“An employee’s use of medical marijuana under these circumstances is not facially unreasonable as an accommodation of her handicap,” justices concluded, meaning cannabis use shouldn’t inherently be out-of-bounds for employees with debilitating conditions. Despite that fact, “it does not necessarily mean that the employee will prevail in proving handicap discrimination,” the court wrote. The question is whether accommodating an employee’s medical cannabis use “would create undue hardship” on an employer.

The court gives some examples. An employer might demonstrate that allowing cannabis use would create an “unacceptably significant” safety risk to the public, the employee, or coworkers. Or the employer could show that cannabis use “would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business.” Transportation companies, for instance, are subject to US Department of Transportation rules that disallow accommodations for cannabis.

The upshot? Don’t assume that Monday’s ruling means you can wake and bake before tomorrow’s commute. But if you’re a law-abiding Massachusetts medical patient who only consumes outside of work and doesn’t show up impaired, the state’s highest court is now on your side.