The legality of medical marijuana is relatively new. Because of that, there has not been much litigation around the topic and therefore, not a lot of precedence or legal guidance. Governor Tom Wolf signed Senate Bill 3 into law on April 17, 2016, making Pennsylvania the 24th state to adopt comprehensive medical marijuana legislation. It seems as though medical marijuana in the workplace has become increasingly commonplace since then, as we've had recent conversations with a handful of our commercial customers regarding the topic. In this blog, we aim to answer as many questions about medical marijuana in the workplace as possible. Medical marijuana isn't going away, so it's important to arm yourself with knowledge as an employer.
What Does the Law Say?
Medical marijuana is still illegal for federal agencies, federal contractors, and organizations that receive federal grants, and employers governed by the regulations of the federal Department of Transportation. If your organization falls under one of these categories, you should be instituting a no-tolerance policy for drug use among your employees.
For all other employers, the course of action is not quite as clear. First and foremost, the legislation makes it illegal to discriminate or take action against an employee "solely on the basis of such employee's status as an individual who is certified to use medical marijuana." That being said, as an employer, you're able to prohibit the possession and use of marijuana in the workplace, including the ability to take action if you find an employee to be under the influence while at work. Be aware that there are implications of determining levels of impairment. Urine tests are not as accurate as blood tests, and even if an employee tests positive for THC, that doesn't necessarily mean they are impaired at that time.
In addition to the PA Medical Marijuana Law, those with medical marijuana cards are most likely protected under the Pennsylvania Human Rights Act. This Act protects individuals with disabilities from discrimination, much like the Americans with Disabilities Act (ADA). Those certified to use medical marijuana could qualify as being disabled. You can find a full list of approved conditions for medical marijuana use here. Now knowing the laws, what can employers do?
What Can Employers Do?
As we previously mentioned, there is limited legal precedence set forth for medical marijuana. Consider writing a medical marijuana policy with the oversight of legal counsel. This way, you can be sure all of your T's are crossed and I's are dotted. The best way to address this policy is in your employee handbook. Good places to address the topic are in the "Employee Conduct and Work Rules" or "Alcohol, Drug, and Substance Abuse" sections.
In addition to outlining the policy in an HR context, be sure to make expectations clear with open lines of communication and strictly defined procedures by doing the following:
- Have a conversation with all employees to bring attention to the new policy and answer any questions that arise.
- Draft job descriptions to include guidelines that state you are ADA and PHRA compliant.
- Train your staff to recognize the signs of marijuana impairment.
- Create a process that will help your employees feel safe and confident in responding to a co-worker's impairment.
- Define the levels of THC that will be considered "impaired" from a drug test.
- Establish processes on how to handle an employee who tests positive for THC and has a medical marijuana ID card.
- Stay up-to-date on changes in marijuana laws on a federal and state level.
Conclusion
If you still have questions or concerns about how to address medical marijuana in your workplace, we strongly suggest consulting with legal counsel. It is essential to get these questions answered and policies put in place to ensure your protection from legal backfire. Without the proper knowledge and policies, you could find yourself in a situation of alleged discrimination.
Legal Disclaimer. Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has a different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.