Employers wary of bill protecting medical pot cardholders

A bill to prohibit employers from discriminating against workers with prescriptions for medical marijuana who test positive for using cannabis has resurfaced in the final weeks of the legislative session, and was unanimously approved by the state Senate.

However, the bill is raising concerns among employers and city officials who worry it could jeopardize workplace safety.

Senators had heard another measure prohibiting discrimination in hiring and employee discipline for workers who use marijuana with a prescription, but that bill stalled in February. State Sen. Rosalyn Baker then inserted similar language into House Bill 673 on March 21 after a public hearing on another issue.

Baker said a medical marijuana card identifies a person as having a debilitating illness that can be helped by the use of medical cannabis. “What we don’t want in the workplace is for people to be discriminated against just because they have that card,” she said. “They should be treated as every other worker is treated.”

The bill would not apply to police officers and state corrections officers, or to employees of companies that might be penalized by the federal government if their workers use cannabis. Marijuana remains illegal under federal law.

HB 673 would allow employers to discipline workers who are impaired on the job, but Baker acknowledged that “there’s no real test for impairment.” People can test positive for marijuana days or weeks after using cannabis, so drug testing isn’t helpful in determining if a worker is high.

Instead, the bill says an employer may deem a worker with a marijuana prescription to be “impaired” if that worker shows specific symptoms that decrease the worker’s performance.

Those symptoms could include altered “speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior” or negligence or carelessness in operating equipment or machinery, according to the bill.

The measure also states that other signs of impairment could include disregard for safety or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others.

ALL OF this has alarmed some members of the Chamber of Commerce Hawaii, which cites a list of flaws in the bill.

“We’re certainly concerned as it relates to employee safety and the workplace environment, so it’s obviously going to have an impact, and that is why we’re concerned about the unintended consequences of this bill,” said Sherry Menor-McNamara, who is president of the chamber.

Menor-McNamara said the measure is too broad, has technical flaws and imposes an “undue hardship” on employers. Among other problems, she said the bill appears to provide greater protection to disabled employees with cannabis prescriptions than to employees who are prescribed other medications.

“We hope that the committees will take a look at the broader impact it would have on employers,” she said.

City officials also objected when a similar measure — Senate Bill 1524 — had a hearing in February. Carolee Kubo, director of the city Department of Human Resources, urged lawmakers at the time to pay close attention to the importance of drug testing in workplace safety.

“To foster a safe work environment, employers must have a reliable and practical method for identifying employees whose work may be affected by the mind-altering effects of cannabis,” Kubo said in written testimony. “This is particularly critical for those employees whose duties include safety sensitive or first-responder functions, where the effects may not be apparent until an employee is in a life or death, crisis situation.”

The city proposed amendments to the bill that would allow employers to prohibit marijuana use by firefighters, lifeguards, workers who carry firearms, emergency medical services workers, employees who handle or dispense prescription medications, and employees who operate heavy equipment or are required to have a commercial driver’s license.

SB 1524 stalled in the Senate Judiciary Committee, but Baker revived the bill by inserting similar language into HB 673.

BAKER SAID her move to revive the anti-discrimination language after it stalled in the Senate Judiciary Committee complies with Senate rules, but others said it appears to run afoul of Senate Rule 23. That rule requires that a hearing be held to give the public an opportunity to testify on a bill if a committee makes a substantial amendment to it.

The Hawaii Civil Rights Commission supports the intent of the measure, saying in written testimony that “this employment protection is critical for registered qualifying medical cannabis patients, because there is no correlation between a positive test and current impairment.”

HB 673 now goes to a House-Senate conference committee for further consideration, but House Health Committee Chairman John Mizuno said the House didn’t hold hearings on any similar proposals this year, and it will be “very difficult” to pass this session.

“It’s a little late,” he said. “I will tell you this, though, it will come up again and again if we don’t.”