SALEM, Ore.-As the number of states that approve medical marijuana use rises, so does CUs' risk for employment battles-and possible member service issues-from staff using the drug.
Employment and HR experts told Credit Union Journal they believe many credit unions don't have policies in place for addressing workers who use this controlled substance, due in part to the infrequency of employment or staff performance issues resulting from medical marijuana use. However, they say, it quickly becomes an urgent matter if the CU comes face-to-face with an employee's positive drug test and has no policy to address the issue.
"You don't want to be sitting there with a positive test in front of you and then trying to figure out how to handle it," said Elaine Rosenberg, GM of Advanced Reporting, a professional background screening services CUSO of Maps CU. "We have seen situations at credit unions where an employee tested positive for marijuana, presented their medical marijuana card and said that under state law they are allowed to use the drug for medicinal purposes. The CU had to decide right then how to handle the matter."
Policies should address when and how the credit union will test for marijuana and other drugs, as well as how the credit union will address the employee or potential new hire and steps it will take if an individual tests positive for marijuana (see related story). Sources stated that addressing the problem after it arises places the CU at greater risk for discrimination claims and wrongful termination lawsuits than if it had an up-front policy that was regularly communicated and clearly understood by staff.
Not At Top of Mind, But...
In 1996 California became the first state to permit the use of medical marijuana. Massachusetts was the latest to come on board, approving use in November 2012. Marijuana advocacy groups are aggressively pushing for more states to permit the use of marijuana for medical use-generally prescribed to treat pain from debilitating diseases such as glaucoma and cancer-as well as to legalize the drug, finding success there in Colorado and Washington.
A new Pew Research Center survey suggests the U.S. has reached a tipping point, finding 52% of people say marijuana should be legal, with 65% of people born since 1980 in favor. Today, laws that either decriminalize or legalize the use of marijuana, or permit the use of it for medicinal purposes, have been enacted in 24 states.
"Anecdotally only, I think the large credit unions have probably thought about and addressed the matter and have some sort of marijuana policy, particularly if the credit union has legal counsel on staff or outside who stay on top of employment law because this is a hot topic," observed Rosenberg. "But for smaller credit unions-the majority-it's probably not something top of mind."
'A Lot To Consider'
Beverly Purtell, SVP at the Massachusetts CU League, Marlborough, Mass., agrees, based on a lack of inquiries from CUs in her state following voters approving medical marijuana use effective Jan. 1. "I think so many credit unions are under a lot of burden with new regulations across the board. My sense is this is in the back of their minds and may not surface until an issue arises," said Purtell, who noted the league is standing by to assist if credit unions have questions.
Purtell said that even the league needs more details on the final regulation, whose 45 pages are out for comment now. "There is a lot to consider here."
A great deal of confusion exists among employers about marijuana laws and employer rights, sources explained, much of it stemming from differing state laws and how federal law applies. Sources indicated that even in states that allow medical marijuana use, federal law (Controlled Substances Act) generally gives employers the right to terminate an employee for testing positive for marijuana even if they have medical clearance. In this case an individual can't be prosecuted, but he or she can be fired or not hired.
"Marijuana, by federal law, is considered a controlled substance," explained Rosenberg. "There is not an obligation for an employer to maintain employment for someone who chooses to use the drug and tests positive, whether they use it recreationally or have a medical marijuana card."
Kelly Tilden, partner and chair of the employment practice group at the law firm of Farleigh Wada Witt in Portland, Ore., summed up the perception of many employers. "Many assume that because someone has a medical marijuana card that the employer can't touch them, and that is not the case. We still receive a lot of calls about that."
Tilden emphasized that employers must get well versed in each state's laws, which can vary greatly, as well as the federal laws, regarding the use of medical marijuana. "Don't make assumptions," said Tilden. "Employers must determine whether the applicable state laws require any workplace accommodation for a disabled employee to use medicinal marijuana. States such as Oregon and Washington do not require employers to accommodate medicinal marijuana use."
Rosenberg, added, too, that employers should stay abreast of marijuana laws because they often change based on new case law.
'Look Very Closely'
There is also the more challenging issue of determining if an employee is under the influence of marijuana, and if that is impairing his or her work (see related story).
But there is good reason, especially for credit unions, to want to become well-schooled in all that surrounds the use of medical marijuana, pointed out Rosenberg.
"Employees deal with members' finances. They have access to account information, personal identification information...I would look very closely at whether the credit union's insurance policies cover a claim against an employee who is using a controlled substance. You don't want to put your members at risk from a worker using a controlled substance."