Attorney talks about effects of Missouri medical marijuana law
When Colorado legalized recreational marijuana in 2014, the state saw a spike in drug screening failures by truckers, with as many as 60 percent flunking tests required by the U.S. Department of Transportation.
Missouri hasn’t legalized marijuana for recreational use, but Overland Park attorney Jason Roth said he still thinks truckers and those who work in other “safety-sensitive” industries could be in for a shock when the state rolls out its new medical marijuana program next year.
“My suspicion is that a lot of people are going to be caught by surprise,” said Roth, who handles trucking-related personal injury cases in Missouri and Kansas. “I don’t know that the majority of folks that are going for a pre-employment drug screen are going to have researched the implications of medical marijuana.”
Missouri voters opted this month to join more than 30 states in legalizing marijuana for medical use.
But it’s still completely illegal at the federal level. That means having a medical marijuana card could be a risk any time someone comes in contact with federal regulations.
That includes buying or possessing a gun.
But it could also have serious consequences for anyone working as a trucker, a school bus driver, an airplane mechanic or any job regulated by the Department of Transportation.
People who work in jobs that aren’t federally regulated but use heavy machinery, like construction, could also find themselves on the wrong side of a drug test. Depending on how their companies want to handle it, having a state-issued medical marijuana card might not be a valid reason.
Roth said concerns about legal liability could even affect people who deliver pizzas or drive for ride-sharing companies, like Uber and Lyft.
Missouri law requires ride-sharing companies to have a “zero tolerance” policy for intoxicating substances while drivers are on the job, but doesn’t tell the companies how to enforce it.
“I think for the transportation sector as a whole, the legalization is going to create some challenges for the entire industry,” Roth said.
Having a medical marijuana card could also make buying life or health insurance more expensive, although research shows it could actually lower societal health care costs.
Marijuana and guns
The federal prohibition on gun ownership for people who use illegal drugs — whether for medical reasons or otherwise — is well-documented.
But Roth’s partner, Brandan Davies, said Missourians may not realize how strict some federal agencies can be about enforcing it.
Davies, a criminal defense attorney, said he represented a client a couple years ago who got a background check when she purchased a gun from a licensed dealer. She got the gun, but Davies said soon after, she also got a call from an “overzealous” agent with the federal Bureau of Alcohol, Tobacco and Firearms because she was on probation for a misdemeanor marijuana possession charge.
The agent told her to return the weapon or transfer ownership to someone else. Davies said she could have been charged with illegal gun possession, though most federal prosecutors don’t want to spend their time on misdemeanor offenders.
Under Missouri’s program, anyone who wants a medical marijuana card will have to apply to the state health agency. Davies said he didn’t know whether the state would have to share that information with federal agencies when someone tries to buy a gun from licensed dealers, who are required to do background checks.
But he said multiple courts have already upheld the feds’ right to continue enforcing the prohibition on gun ownership in states where medical marijuana is legal.
Marijuana and transportation
The federal government has also made it abundantly clear that it intends to continue enforcing marijuana prohibition for people who work in industries it regulates, including trucking, trains and airplanes.
As more states started legalizing medical marijuana, the Department of Transportation put out a a bulletin in October 2009 saying it would still require drug testing for a host of professions, from pilots to ship captains to school bus drivers.
“It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” read the statement written by Jim Swart, the director of the department’s drug and alcohol compliance program.
That has not changed, even as dozens more states have legalized the drug for medical and recreational use.
People who work at nuclear facilities or for defense contractors may also be subject to federal drug screenings and job loss if they test positive for marijuana.
There’s no precise way yet to determine whether someone has consumed too much marijuana to safely operate machinery. Colorado has set a limit for how much THC drivers can have in their blood, but its accuracy as a measure of intoxication is disputed.
Roth said that means any company that employs drivers or heavy machinery operators could face legal problems if an employee tests positive for any amount after an accident, even if they were using it for medical purposes.
Marijuana and insurance
What does medical marijuana have to do with buying life insurance? It probably won’t get you turned down, but it could raise your rates, said Laura McKiernan Boylan, who works for an online insurance agency called Haven Life.
“If you smoke marijuana occasionally, it doesn’t necessarily impact your eligibility or rate,” McKiernan Boylan said. “(But) if you’re a more heavy user it can have an impact on the price you pay or eligibility across the board.”
McKiernan Boylan said marijuana use is one of several lifestyle choices underwriters ask about when they’re forming policies for individuals.
If it’s being taken for medical use, the bigger issue for insurers would probably be what condition it’s being used for, she said. But either way, users need to be truthful about it because if they try to hide marijuana use, it could be grounds to deny claims or even void policies entirely.
Besides, many life insurance companies require a medical exam, including a drug test, before they’ll issue an individual policy.
“If you’re upfront and honest about it, it often isn’t a problem, especially if it’s just occasional usage,” McKeirnan Boylan said.
It’s a similar, but slightly more complicated story for health insurance.
Individual plans sold on the subsidized Affordable Care Act exchange, commonly called Obamacare, are allowed to change rates based on only five criteria: age, location, tobacco use, plan design and how many people in your family are enrolling.
Currently, companies can’t ask about medical marijuana or whether you have a condition that qualifies you to use it under state law.
But non-ACA “short-term” plans can, and those offerings are expanding under President Donald Trump’s administration.
That means Missourians with medical marijuana cards could get charged more for those plans, even though their marijuana use could lower premiums for everyone else.
Studies published in Health Affairs found that people on Medicare and Medicaid were less likely to rely on prescription drugs after their states legalized medical marijuana. That meant millions in savings for the government health plans, because medical marijuana is not covered by any insurance.