Devjani Mishra Quoted in Risk & Insurance
"Employee Protections for Medical Marijuana Go Up in Smoke"

Devjani Mishra was quoted in the article, "Employee Protections for Medical Marijuana Go Up in Smoke," published in the April 15, 2010 issue of Risk & Insurance. The article reported on the Oregon Supreme Court decision, which handed businesses a decisive win and settled a long-running debate over whether an employer should be held liable for an unlawful employment practice if it chooses not to hire a worker who disclosed that he would not pass a drug test because of his medical marijuana use. According to Devjani, despite the confusion, the Oregon decision should not come as a surprise, because courts in California and Montana have reached similar verdicts in recent years. She noted, "All courts at the high level have come down in favor of employers. They have indicated that the statutes really serve to define the relationship between a state and its people, and are not designed to be used to regulate the relationship between employers and employees." Devjani also noted that given the functions of the job, "it is up to the judgment of management about how they want to accommodate this activity." She further explained, "This can be difficult because many jobs require an attention to detail, like operating heavy equipment or machinery. You have to look at the individual job and person, and if you decide to accommodate these users, determine how you will do it without creating liability. This may include transferring the individual to another job or scaling back certain tasks."

Devjani pointed out, "Based on case law, employers are not going to be required to stop testing for marijuana. And if employers make that decision to accommodate, they need to go about it in a very concrete way." She suggested, "Look at the job descriptions and make sure they accurately define the essential functions of the job. If you are assessing whether a person can perform certain tasks or not, you want to make sure that you can have a conversation about how medical marijuana will affect very specific elements of the job."  Devjani concluded that in the end, it still comes down to an employer's judgment. "If you don't want to accommodate, there is legal safe harbor out there to do that," she added.