The Honolulu Police Department has at least temporarily put the kibosh on forcing medical cannabis patients to surrender their guns, but they could face other problems stemming from discrepancies between state and federal law.
Even though Hawaii legalized medical cannabis in 2000 and opened dispensaries this year, marijuana is still banned under federal law, which classifies it as a Schedule I drug alongside heroin, LSD and meth.
That leaves many patients puzzled about their rights. Medical cannabis is banned across all branches of the military, for example, and it can’t be brought into national parks. Residents of private housing are generally protected thanks to a law prohibiting landlords from discriminating against patients, but public housing tenants may be more vulnerable to eviction.
The bigger issue, cannabis supporters say, involves patient rights in the workplace, because in Hawaii, taking their medicine could cost them their jobs.
Many employers have a zero-tolerance drug policy. But even for those who want to accommodate medical cannabis patients, things can get complicated because it’s difficult to tell whether someone is intoxicated by the drug at any given time.
Marijuana usage can be detected by a urine sample for up to a month. Unlike alcohol, there’s no reliable test for real-time cannabis intoxication, making it tricky for employers to tell whether a worker uses marijuana while off duty or on the job.
Now, a few months into the state’s dispensary program and a month before the 2018 legislative session, a medical cannabis working group is evaluating the dispensary program and problems encountered by patients.
Test results since dispensaries opened suggest marijuana use in the workforce may be on the rise.
The number of urine samples analyzed by Diagnostic Laboratory Services that tested positive for marijuana increased by 65 percent in the third quarter this year compared to the same period last year, said Carl Linden, the company’s scientific director of toxicology.
Dispensary sales began in early August, about a third of the way through the quarter.
The number of marijuana-positive samples increased by 36 percent from the second to the third quarter of 2017. Fourth quarter results to be released in January may give a better indication of whether increased cannabis use is a trend, he said.
ALTRES, one of the state’s largest outsourced human resources companies with 1,500 clients (including Civil Beat), recommends a zero-tolerance policy because of the conflict between federal and state laws, said Michele Kauinui, the company’s HR director.
“As a private employer, they can establish whatever drug testing policy they feel fits,” she said, adding, “from an HR perspective, (allowing medical cannabis use is) not something that we recommend.”
A template policy provided to clients directs employers on how to test for drugs — including alcohol — randomly, pre-employment, after an accident and upon reasonable suspicion of intoxication. In 2014, ALTRES added language to its sample policy regarding the state’s medical marijuana law:
Marijuana, even if “prescribed” under Hawaii’s medical marijuana law, is an “illegal drug” under both Hawaii and federal law … If you test positive for marijuana … you will be subject to the consequences for such a violation, without regard for or consideration of your status as a user of medical marijuana under Hawaii law.
The majority of ALTRES clients have adopted the sample policy, Kauinui said, but some opt not to drug-test employees. Clients in the construction and restaurant industries “tend to steer away from drug testing.”
A “very small minority” of clients choose to implement their own drug policies, she said, and the company has recently received more inquiries on removing marijuana from the list of drugs employers test for.
In workplaces that don’t test for cannabis, she said workers might conclude illegal drug use is acceptable. Even if a medical cannabis patient only uses the drug at home, Kauinui said some studies have shown the effects of marijuana linger. That could impair an employee’s ability to work.
Since dispensaries opened, Kauinui said, more ALTRES clients have sought clarification on state medical marijuana laws.
“The conversation does touch on ADA (the Americans with Disabilities Act) more so than ‘should we carve marijuana out of our drug testing?’” she said.
Under ADA, employers are required to make “reasonable accommodations” for disabled employees. But courts in Hawaii and across the country have typically ruled that employers have no obligation to accommodate medical cannabis use.
“A state law decriminalizing marijuana use does not create an affirmative requirement for employers to accommodate medical marijuana use,” wrote state District Court Judge Helen Gillmor months ago in a lawsuit brought by an employee who was fired after testing positive for cannabis. The worker cited the ADA in claiming discrimination and retaliation.
In other states that allow medical marijuana, there’s some indication that courts are becoming more sympathetic to employees who are patients.
A lower-level Massachusetts court originally sided with an employer on most claims after it fired an employee suffering from Crohn’s disease who tested positive for marijuana. But on appeal, the Supreme Judicial Court of Massachusetts reversed the lower court’s motion to dismiss the fired worker’s claims.
In Connecticut, which prohibits employers from firing patients for off-duty marijuana use, a court denied an employer’s attempt to dismiss an ousted worker’s lawsuit on the basis that federal law supersedes state law.
And in New York City, an administrative board ruled taxi and limousine drivers could not have their licenses revoked for legal medical cannabis use.
In the Aloha State, cannabis advocates are hoping to amend current medical marijuana laws that do not protect patients in the workplace.
Carl Bergquist, executive director of Drug Policy Forum of Hawaii, chairs a patient rights subcommittee for a legislative working group that aims to propose legislation next session.
Four legislators sit on the 20-person working group that was mandated by Act 230 of 2016 “to develop and recommend legislation to improve the medical marijuana dispensary program.”
At a meeting Wednesday, the subcommittee plans to vote on its priorities for the upcoming session.
“A state law decriminalizing marijuana use does not create an affirmative requirement for employers to accommodate medical marijuana use.” — District Court Judge Helen Gillmor
Bergquist called state protections for working patients “weak” and said testing for cannabis is never warranted. In general, he said tests for other drugs should only be administered when an employee appears to be impaired while on the job.
“At the very least, we argue that the state, in order to be proactive … should also extend protections in the work environment,” Bergquist said.
The Legislature has considered workplace protections for medical cannabis patients before.
A bill introduced in 2015 aimed to prevent employers from disciplining or firing patients for medical marijuana use. It was stripped of the employee protections, but eventually became law, leaving in place protections for patients enrolling in schools or waiting for an organ transplant.
The law also protects patients who live in settings governed by condo associations.
In 2014, a law was passed prohibiting landlords from evicting tenants who use medical marijuana, unless the rental agreement bans smoking. Even under anti-smoking rental contracts, patients may store their cannabis at home, and use edibles, pills or alternative consumption methods.
For the most part, condo associations are “pretty akamai” when it comes to accommodating medical cannabis patients, said Jane Sugimura, president of the Hawaii Council of Associations of Apartment Owners.
The associations set their own smoking rules. In general, residents aren’t supposed to smoke — whether it’s tobacco or cannabis — anywhere that can interfere with another person’s enjoyment of their unit, be it a lanai, hallway or near an open vent.
If there are complaints about marijuana smoke, Sugimura said residents are asked to prove that they’re legally able to consume the drug.
“What you do in your own unit … you don’t need the association’s permission,” Sugimura said.
“We don’t need to wait for someone to be turned onto the street to take action.” — Carl Bergquist, Drug Policy Forum of Hawaii
The issue gets more complicated for residents of federally funded public housing units.
A 2011 memo from the U.S. Department of Housing and Urban Development instructed public housing agencies in states where medical marijuana is legal to use “discretion to determine, on a case-by-case basis, the appropriateness of program termination of existing residents for the use of medical marijuana.”
A HUD spokesman confirmed the notice is still in effect.
But new applicants who use medical marijuana, according to HUD, should be rejected because the plant is classified as a Schedule I drug under federal law, which pre-empts state law, the memo said.
There are Food and Drug Administration-approved drugs approved for use in federal public housing that include synthetic marijuana, such as Marinol and Cesamet, the memo said.
The authority also said state law gives it the right to evict tenants “if any member of the family engages in the use of marijuana, even if pursuant to a lawful prescription.”
So far, no tenants have been evicted because of medical cannabis use, according to the authority, but that’s not good enough for cannabis advocates.
“We don’t need to wait for someone to be turned onto the street to take action,” Bergquist said.