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The Jacki Rickert Medical Marijuana Act (S 368 and AB 554 )
 
On October 27, 2009, legislation was introduced in both the Wisconsin Senate to legalize medical marijuana. The bill, which would change state but not federal law, has provisions similar to a medical cannabis law passed last year in Michigan by two-thirds of voters and, with specific criteria, is supported by Governor Doyle.
 
Under this bill, which is named for a Wisconsin resident who has several chronic ailments that affect her bones and joints and has been on cannabis therapy since 1990s, an individual who has a debilitating medical condition or treatment would be able to establish a medical necessity defense to marijuana-related prosecutions and forfeiture actions. Qualified debilitating medical conditions would include, among others, cancer, glaucoma, AIDS, a positive HIV test, Crohn’s disease, Hepatitis C, Alzheimer’s disease, and post-traumatic stress disorder, or a disease or condition that causes wasting away, severe pain, severe nausea, seizures or severe and persistent muscle spasms. If passed, the bill would include strict operating parameters and requirements, including a registry identification card for qualified individuals, a doctor’s prescription and licensed and regulated non-profit distribution centers (called compassion centers).
 
Workplace Concerns
However, it will likely raise some confusing and challenging workplace issues for employers, especially as they involve issues of disability accommodation, drug testing, privacy and termination decisions. And, although the bill would prohibit the arrest or prosecution of a qualifying patient, a medical cannabis defense would not apply if the person, while under the influence of marijuana, drives or operates a motor vehicle, operates heavy machinery or engages in conduct that endangers the health or well-being of another person, or if the person smokes marijuana at his workplace or other specified public locations. Although the employee could not use the drug while at work, under current state and federal disability laws, employers may have to consider accommodating employees who have a qualified medical condition and legal prescription for medical cannabis. If this bill becomes law, employers will be challenged to deveop an effective policy and practice that balances employee privacy rights with the company’s desire to maintain a drug-free workplace.
 
Enforcement
Currently, 13 states have legalized medical marijuana and the Obama administration has stated that it will not seek to enforce federal drug laws in those states. In fact, in its October 19, 2009, guidelines issued to federal prosecutors in states that have enacted medical marijuana laws, the U.S. Department of Justice said that the prosecution of seriously-ill individuals who use medical marijuana with a valid prescription “is unlikely to be an efficient use of limited federal resources.” These guidelines do not change federal law; they simply instruct prosecutors to focus efforts and resources on illegal drug trafficking activities. The Obama administration’s stance appears to be contrary to a 2005 U.S. Supreme Court decision which provides that the federal government may enforce the Controlled Substances Act’s prohibition on the use of medical marijuana in states where possession and use of drug for this reason is legal. However, this position is not being universally accepted. The U.S. Department of Transportation responded to this Memorandum on October 22, 2009, stating, “The DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to federal prosecutors.”
 
Status
The bill is currently in the Senate Committee on Health, Health Insurance, Privacy, Property Tax Relief and Revenue. A public hearing will be held on the bill on December 15, 2009. Similar bills have been introduced in prior sessions but were not successful. Regarding S 368 and AB 544, Rep. Pocan, the lead Assembly sponsor of the bill, has said that “he was confident the Assembly Public Health Committee would approve the bill and forward it to the full Assembly.
 
Additional Information
 
Contact Information 

Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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