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Medical marijuana and the workplace: what you need to know

Posted on: March 9th, 2017 | Category: Employee Handbooks, Government Regulatory & Compliance Issues, Our Blog

Medical Marijuana in the Workplace

Pot. It’s not just for stoners anymore. And with all the new and revised medical marijuana laws across the country, it’s easy to see why employers are left scratching their heads about how to adapt their policies and procedures. We thought it would be useful to remind our readers about the hazy pitfalls that employers can run into in while trying to determine how to accommodate employees who are sanctioned to use medical marijuana without running into compliance, safety or productivity issues in the workplace.

Medical marijuana and your company drug policies

Let’s take a look at Pennsylvania for a moment. Employees who use medical marijuana are now a protected class under federal equal employment opportunity laws, and many companies are not sure how that will affect their businesses. According to JDSupra, Pennsylvania’s recent Medical Marijuana Act (MMA) has left employers “dazed and confused” [Editor’s note: Well played, JDSupra, well played…] about whether they can keep their existing zero-tolerance drug policies or not. From the blog:

The MMA, which provides qualifying patients with access to medical marijuana through a safe and effective delivery method, is intended to balance patient need for access with patient safety. However, balancing these interests is not always an easy task, especially because marijuana remains an illegal substance under the Federal Controlled Substances Act. The attempt to balance patient access and safety, and the juxtaposition between state and federal law, can put employers in a sticky situation, particularly when it comes to establishing and enforcing zero tolerance drug policies.

 

Pennsylvania courts haven’t had to rule on these issues as of yet. For now, employers in the Keystone State, and all over the country, will need to keep a cautious eye on this type of legislation in their own jurisdictions.

myHR Partner is on it!

Back in April 2016, Governor Tom Wolf signed the bill legalizing medical marijuana in Pennsylvania. Since then, employers in the state, like those in 24 others across the country and Washington D.C., had to heed the protections offered to patients who use pot for medicinal purposes. Later that fall, myHR Partner President Tina Hamilton, PHR, was an expert panelist in a symposium on what employers need to know about medical marijuana in the workplace.

The discussion was lively and covered a wide array of concerns employers have on the issue, including how the pot would be dispensed, what form patients could take, what impact this might have on workplace safety and how to keep compliant with the Americans with Disability Act (ADA). From Lehigh Valley Business:

Patients who are prescribed marijuana from a physician certified to prescribe it, get a certificate from the state and a 30-day supply obtainable only from a special dispensary – not a commercial pharmacy, said panelist Frank T. Troilo, a workers’ compensation attorney with Zenith Insurance Co. of Norristown.

Troilo said the new regulations exclude employees in certain occupations from using medical marijuana if it “would put their fellow employees at risk or if the employee’s use would cause a public risk.”
 
He said employers can’t be sued under the Americans with Disability Act because marijuana is still a controlled substance under federal law.

 

Is your company ready for this?

What are you required to do if you have employees who are medical marijuana users? Are your policies and employee handbooks up-to-date enough to accommodate this “new normal?” According to a 2016 article posted on The Employer Handbook by Eric E. Meyer (written before Governor Wolf signed the legislation), there are several things for companies to keep in mind. Specifically:

  1. An employer may not “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
  2. Employers do not have to make any accommodation for the use of medical marijuana on their property or premises of any place of employment.
  3. This act does not limit an employer’s ability to “discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”
  4. The Americans with Disabilities Act (ADA) does not protect illegal drug use but does allow for the use of a drug taken under supervision by a licensed healthcare professional. Consider treating medical marijuana as you would other prescription drugs.
  5. The act does not require an employer to “commit any act that would put the employer or any person acting on its behalf in violation of federal law.”

 
Even back then, Meyers noted that there was some confusion within the bill that should be of concern to employers:

I’m getting some mixed signals here. On the one hand, you can’t discriminate “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” (my emphasis). This suggests that you can discriminate for other reasons, such as actual use of medical marijuana.
 
However, then it says “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” (my emphasis). This suggests that you may have to accommodate the use of medical marijuana outside of work. Unless the employee shows up to work under the influence.
 
Hmmm…

 
Now that this is the law of the land, we are looking cautiously at how this legislation will play out in the real world. Only time will tell.

How to deal with medical marijuana as an employer

ADA, FLMA, ACA...OMG! Modern employers need information like this!

ADA, FLMA, ACA…OMG! Modern employers need information like this!

Educating your employees about what they can expect at work is important. In some industries, for example, laws forbids you from employing people with Schedule 1 drugs (as defined by the United States Controlled Substances Act) in their system, which means this new law doesn’t change anything now that it has gone into effect.

“Keep in mind that for a person to be certified to use medical marijuana, they will potentially already have an ADA-qualifying disability,” says Hamilton. “You can use this issue as a chance to update your handbooks so that they clearly cover workplace accommodations for disabilities.”

HR issues got you stumped?

The new medical marijuana employment laws can be difficult to adjust your current handbooks to, but we can help. myHR Partner can also help you tackle the HR tasks that encompass so much of what makes your business run smoothly, successfully and profitably. Contact us today to discuss how myHR Partner’s HR outsourcing can help your bottom line.

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