An article written by Employment Law attorney Ryan W. Morris discusses the need for employers to develop a Medical Marijuana Policy.

A podcast discussing how to develop a Medical Marijuana Policy features Employment Law attorneys Ryan Morris and Ryan Murphy.

PODCAST – Medical Marijuana Policy (Ryan Morris and Ryan Murphy)

Introduction

In 1996, California became the first state to legalize the medical use of cannabis.  Since then, medical marijuana has been legalized in thirty-nine (39) states and the District of Columbia.  However, because marijuana remains an illegal drug under federal law with the potential to negatively impact workplace safety, employers in states that have enacted medical marijuana statutes are faced with the difficult prospect of enforcing policies against misuse of marijuana in the workplace while avoiding violation of statutory protections.  This challenge is exacerbated by the lack of accurate methods for testing marijuana impairment and the need for employers to maintain adequate staffing amidst increasingly prevalent use of medical marijuana.

The Law

The federal Controlled Substances Act (“CSA”) lists marijuana as an illegal Schedule I controlled substance with a high potential for abuse, and with no currently accepted medical use in treatment.  Additionally, regulations promulgated under the Drug Free Workplace Act of 1988 (“DFWA”) set forth additional rules and requirements for federal contractors and certain transportation industry employers with respect to their policies on employee drug and alcohol use, testing and discipline.  While the Americans with Disabilities Act (“ADA”) does not protect individuals based on their current use of illegal drugs – including marijuana – the medical condition(s) underlying an employee’s use of medical marijuana under state law may constitute evidence of a disability for which the statute does offer protection.

Against this backdrop, each state which has legalized medical or recreational marijuana has its own regulations as to how medical marijuana is to be treated in the employment context.  However, there are a few key commonalities between the laws of these states.  The vast majority of states require patients to obtain a state-issued license or registration based on physician authorization prior to their use or possession of marijuana for medicinal purposes.  Additionally, most state laws carve out exemptions for employers, authorizing prohibitions against the use or possession of marijuana on work premises and on-the-job intoxication by employees, particularly where the lack of such prohibitions would jeopardize the employer’s compliance with applicable requirements under federal law.  Some states contain additional statutory prohibitions on marijuana use or intoxication for employees working in certain “safety-sensitive” positions, applying a more rigorous standard to employees working in these positions.

Conversely, some state laws provide medical or recreational marijuana users with some protection against adverse employment actions.  These include prohibitions on discrimination against employees based on their lawful use of medical marijuana outside the workplace, or their general status as medical marijuana cardholders.  Some states and municipalities have also imposed statutory limits on an employer’s right to conduct drug testing for marijuana, or on the ability to terminate an employee based solely on a positive marijuana test result.  Since most medical marijuana laws are relatively new, only a few states have had an opportunity for judicial interpretation, meaning there is little guidance on the application of these medical marijuana laws.

Description of the Policy

An effective Medical Marijuana Policy has several key components.  Below is a list of crucial aspects of an effective policy:

• Written Policy: This policy should be written and maintained as part of an employer’s overall drug and alcohol policy and should remain available to employees at all times.  If necessary, this policy should be available in multiple languages reflective of the employer’s base demographic.
• Employee Distinctions – Job Category: This policy should delineate between legal standards applicable to employees in different job categories, including: (1) federally-regulated jobs or industries; (2) statutory “safety-sensitive” positions; and (3) general employees.
• Employee Distinctions – Geographic Area: For employers whose workforce extends across state lines, the employer should either adopt separate written policies for employees in each state, or should otherwise adopt a universal policy applying the most restrictive state law standard to all of its employees (i.e. the standard which offers the greatest degree of worker protection).
• Reporting: This policy should require employees to provide notice of their prescription or license for medical marijuana prior to undergoing testing.  While employers may also wish to request supporting documentation, such as a copy of the employee’s medical marijuana license, employers should avoid inquiring too deeply into the employee’s underlying medical condition, as this may trigger separate issues under the ADA.
• Interactive Process: For employees or applicants who have disclosed a prescription for medical marijuana, the policy should provide the opportunity to engage in a limited interactive process to determine whether the employee’s use of medical marijuana as prescribed would violate company policy, and whether any reasonable accommodations exist, including alternative treatment options.  However, as noted above, employers should avoid inquiring too deeply into the employee’s underlying medical condition.
• Testing: The policy should detail protocol for testing consistent with state law and as a condition of employment.
• Discipline: This policy should state that an employee’s violation of prohibitions regarding the use and possession of medical marijuana, or prohibitions on working under the influence, will result in disciplinary action, up to and including termination of employment.  Depending on the level of protection afforded under state law, employers may need to provide additional evidence beyond a mere positive marijuana drug test result before taking disciplinary action.
• Confidentiality: This policy should notify employees that the employer ensures confidentiality of test results.

Workplace Culture

A written policy alone is not sufficient.  Employers who choose to implement a Medical Marijuana Policy must also demonstrate a commitment to implementing and enforcing such policies consistently and effectively.  In drafting and adopting such policies, employers should carefully consider their legitimate business needs and interests in maintaining a safe and healthy work environment.  These should be weighed against legal rights and obligations under state and federal law, as well as the practical need to maintain adequate staffing in a job market increasingly saturated with medical marijuana patients.

Part of this commitment should include providing sufficient training to employees at the supervisory or management level to enable them to recognize and document signs of employee marijuana impairment on the job.  As indicated above, due to inadequacies in current testing methods, employers are likely to face difficulty in demonstrating marijuana impairment or intoxication in violation of company policy based solely on a positive drug test, particularly in states that provide heightened protections for medical marijuana patients in the employment context.  In these circumstances, it becomes necessary for employers to provide additional evidence of marijuana intoxication through specific, contemporaneous and articulable observations recorded by one or more supervisors prior to taking an adverse employment action based on a positive marijuana test.

Claims, Damages, and Impact

Depending on the level of protection afforded to medical marijuana patients under state laws, employers may face claims of discrimination for adverse actions taken against an employee based on the employee’s lawful use of medical marijuana or their status as a medical marijuana cardholder.  In Pennsylvania, courts have even gone so far as to recognize an implied private cause of action for discrimination under the state’s medical marijuana statute, despite the lack of any express language creating such a cause of action.  Employers may also face potential liability for “pretextual” disability discrimination under the ADA where an adverse employment decision is based in whole or in part on discussions of an employee’s or applicant’s underlying medical condition serving as the basis for their medical marijuana license.

On the reverse side, employers who fail to adequately enforce their medical marijuana policies may face liability for negligent hiring or supervision where an employee’s marijuana intoxication in the course of their employment results in injuries to themselves or others.  Additionally, employers who fail to take steps to maintain a safe, healthy, and/or drug-free workplace may find themselves running afoul of federal laws and regulations, resulting in potential revocation of eligibility for federal funding and/or the implementation of civil or administrative fines and penalties.

These claims can quickly become costly for employers, resulting in added expenses from attorneys’ fees and court costs, as well as potential liability for damages resulting from actions brought by employees or third parties.

Analysis and Conclusion

Medical marijuana presents a unique challenge to the adoption and implementation of an effective drug and alcohol policy.  The increased legalization of medical marijuana under state laws has required employers to balance the interest of workplace safety with the rights of their employees while simultaneously navigating complex and often contradictory legal standards under state, federal and local laws.  The matter is further complicated by the lack of accurate scientific testing methods to determine the level or timing of marijuana impairment or intoxication, and by the increased use of medical and recreational marijuana among members of the workforce.  Thus, it is vital that employers maintain an effective medical marijuana policy and engage in best practices to prevent these claims and provide affirmative defenses to mitigate damages should a claim arise.

If you have any questions or are in need of assistance in updating your Employee Handbook, please contact Ryan Morris, Esq. at rmorris@c-wlaw.com or 1-888-488-2638.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.