Are you ready to handle the issues, challenges of legal medical cannabis?
Currently, 33 states and the District of Columbia have approved the use of medical cannabis for various illnesses and conditions; and more states are likely to follow suit. At the same time, recreational marijuana use is currently legal in 10 states and the District of Columbia.
While details of the laws vary from state to state, experts suggest a few steps you can take to ensure your organization is complying with employment and medical cannabis laws in your jurisdiction.
Educate managers about your state’s laws regarding medical cannabis and/or recreational marijuana use. Make sure they understand how the laws apply to patients and employees alike.
Review your employee handbook and modify policies, such as those regarding anti-discrimination issues and/or substance abuse, to address medical cannabis use in and outside of the workplace. Clarify your drug-testing policy to include any exceptions, if appropriate, for medical cannabis use. Include information about medical cannabis and drug-testing for new hires in orientation and onboarding programs/materials.
Consider building clear statements into policy documents such as: “We as an employer will not accommodate marijuana/cannabis use, period, unless required by state law.” Federal law is the minimum standard, and states can adopt tougher ones if they desire to do so. So you need to know and comply with state laws.
States that currently have medical and recreational use statutes can be divided into three categories:
- Those that say employers don’t have to accommodate marijuana/cannabis use at all.
- Those where employers must consider accommodating medical cannabis use.
- The state of Maine, where a positive drug screen cannot lead to an adverse action such as refusal to hire or termination based solely on that screen. There also must be a compelling business reason to take adverse action.
“Employers would be smart to be thinking about preparing for the eventuality of nationwide legalization,” says Todd Simo, chief medical officer at HireRight. He adds, “Having a reasonable-suspicion program in place that is defensible and allows management to articulate the observations of impairment on the job.” He further suggests training on how to react when someone is impaired at work and clarifying for all the actions that will be taken.
Many post-acute and long-term care facilities have policies stating that they are a drug-free workplace regarding medical cannabis use by employees. “You can address medical cannabis in your policies. Because it remains illegal under federal law, you can prohibit its use by employees even in their homes and on nonworking hours and even if the employee is complying with state law and a physician’s recommendation, but you have to word the policy carefully,” says Alan C. Horowitz, Esq., RN, a partner at the law firm of Arnall Golden Gregory, LLP. Horowitz adds, “Likewise, if the company is going to permit employees’ use of medical cannabis, it should carefully address the permissible circumstances in its written policy.” If you are going to forbid employees’ medical cannabis use, it should be an “all or nothing” proposition. For instance, you can’t allow it for office staff and prohibit it for workers providing direct patient care.
HR should never make or change a policy regarding medical cannabis without appropriate legal counsel in their jurisdiction. This is a very complex issue with potential for criminal as well as civil consequences. Horowitz notes, “We have already witnessed courts in some states upholding an employee’s termination for using medical cannabis off-site on personal time, while other state courts have reached a completely opposite conclusion. Therefore, any policy must be carefully crafted with advice from competent counsel in the jurisdiction where the company is located.”
