House Bill 242 is being considered today in front of committee. This bill would make changes to the law related to drug and alcohol testing in the workplace. For those watching marijuana-related issues at the Capitol this year, the key change is that the definition of “dangerous drug” would be amended from “a dangerous drug, as defined in 49 CFR, part 40, except a drug used pursuant to a valid prescription or as authorized by law” to “any substance defined as a dangerous drug pursuant to Title 50, chapter 32, parts 1 and 2.”
Primarily, our read is that this law makes it easier for employers to test for prescription drug use by employees. I don’t think there is any doubt medical marijuana could be included in this definition change since it is a controlled substance “authorized by law,” but use of medical marijuana is already clearly prohibited for some types of employees either on or off the job according to several significant cases as well as the language of the Montana Marijuana Act itself at 50-46-320(2)(b). In other words, we do not see this amendment as affecting the law either positively or negatively for patients.
Unfortunately, patients are in the same bad position they always were irrespective of this change. Employees can be tested for the presence of THC, and generally they can be terminated if it shows up if is prohibited under a zero tolerance policy for employers – even when they are not impaired on the job, and have a valid medical marijuana card.
If the law were to improve, it would be to require employers to ONLY test for Delta-9 THC, which would go to impairment while on the job – a genuine issue. What a person consumed 2 weeks ago when not “on the clock” should be completely irrelevant to an employer. However, this area has been heavily litigated and the cases do not go our way. The courts have consistently found that employers can simply follow federal guidelines and sidestep the impairment issue.
This is a good example of why we need to change federal law prohibiting cannabis.