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Evolving state laws on marijuana use require healthcare providers to review their drug policies. This ensures compliance with labor laws, reduces the risk of civil litigation, and maintains patient safety. Employers can still prohibit illegal substances and workplace impairment. However, legal experts warn that relaxed marijuana laws create gray areas that need attention.
Many states have relaxed marijuana laws in recent years. Some allow medical use, others permit recreational use, and some have decriminalized possession. According to the National Conference of State Legislatures, 28 states, the District of Columbia, Guam, and Puerto Rico now allow medical marijuana. Seven states and the District of Columbia have also legalized marijuana for recreational use. California, Massachusetts, and Nevada passed measures in November 2016 to legalize recreational marijuana.
Navigating Conflicts Between State and Federal Marijuana Laws
Marijuana remains illegal at the federal level, allowing employers to prohibit its use at work. They can also test employees for evidence of use, says John A. DiNome, JD, partner at Reed Smith in Philadelphia.
“That creates a conflict,” he explains. “Employees argue that state law allows medical or recreational use, yet employers still conduct drug tests. They may use marijuana at home while others drink beer or bourbon. Then, they come to work on Monday completely sober, but the drug appears in their system during testing. As a result, they question why an employer would fire them for using a legal substance at home.”
This conflict becomes even harder for employees who use medical marijuana as prescribed, he adds.
The Colorado Supreme Court addressed this issue in a case where an employer fired an employee for legally using medical marijuana. The employer claimed it followed federal law, specifically the Drug-Free Workplace Act, because it was a federal contractor. The Supreme Court ruled in favor of the company. Since state and federal laws conflicted, the court allowed the employer to comply with the more restrictive federal law, DiNome says
Some Hospitals Have a Choice
Federal contractors have no flexibility on this issue, says Danielle Urban, JD, partner at the Fisher Phillips law firm in Denver. “If you’re a federal contractor, you must prohibit all marijuana use, regardless of state law,” Urban notes.
For employers with a choice, the key question is whether taking a strict stance on marijuana is beneficial, says DiNome. “If your state allows medical or recreational marijuana use, enforcing a zero-tolerance policy may limit your ability to attract top talent,” he explains. “Some highly educated and qualified professionals move to states where marijuana is legal. Employers must decide whether they want to exclude these individuals from their workforce.”
DiNome suggests that employers consider using more advanced marijuana testing. Unlike a breathalyzer, which measures real-time alcohol impairment, standard marijuana tests only detect use within the past 30 days. More precise tests exist, but they cost more and require a blood sample, DiNome notes.
“You still need to define what level of marijuana use is unacceptable, and there is no universal standard,” he says. “If your goal is to prevent impairment at work without restricting legal off-duty activities, adopting more advanced testing methods may be the best approach.”
Executive Summary
Changing state laws regarding marijuana are forcing healthcare providers to reconsider their policies on drug use by employees. Risk managers should review their policies in light of labor laws and patient safety.
- State laws may conflict with federal law, which still prohibits the use of marijuana.
- At least one state supreme court has determined that an employer can choose to follow federal law.
- More precise drug testing may help differentiate between impairment and past use.
If the organization does not prohibit employees’ use of legal marijuana, caution is still necessary the same as with many other legal substances, DiNome notes. Employees who use prescribed or over-the-counter medications that can impair their ability to operate machinery safely, for instance, must be required to report that condition and avoid compromising safety. The same would apply to the medical use of marijuana, if there is any effect on the employee during working hours, DiNome says.
Patient Safety Trumps All
Some states make it even more difficult for employers by prohibiting discrimination against employees who legally use marijuana, says Joshua Horn, JD, partner at the Fox Rothschild law firm in Philadelphia. In these states, employers must choose between complying with state or federal law. Many decide that state enforcement is more likely than federal action.
However, federal funding could shift the balance in favor of federal law.
“Institutions that rely on federal funding risk losing it if they don’t test employees for Schedule I drugs during hiring and employment,” Horn says. “I suspect this issue will be litigated until we get more clarity on these conflicts.”
Safety considerations almost always take priority over an employee’s right to use any substance that affects performance, says Bob Morgan, JD, special counsel at the Much Shelist law firm in Chicago.
“Whether an employee is driving a truck cross-country or working in an ICU, employers can enforce policies to protect those they serve,” Morgan says. “This applies regardless of cannabis laws in your state. Employees in these roles directly impact health and safety, so protecting the people they serve remains the top priority.”
Disputes over unemployment compensation could also arise. An employee fired for marijuana use may argue that they did nothing illegal and deserve unemployment benefits. That issue remains unsettled, Horn says.
“When you’re terminated for using a Schedule I drug, that could be heroin or LSD, and marijuana is still lumped together for that,” Horn says.
Horn advises healthcare risk managers to review their drug policies and employee handbooks against what state law says about marijuana use.
Cardholders May Be Protected
Danielle Urban, JD, partner at the Fisher Phillips law firm in Denver, says employers must handle “cardholders”—those legally allowed to use medical marijuana—carefully in states that prohibit discrimination against them.
Simply knowing that a person is a cardholder does not justify taking action, she explains. “Even if you enforce a zero-tolerance policy, you cannot fire someone just for holding a medical marijuana card and presumably using marijuana,” she says. “If you plan to take action, I advise against disciplining or firing unless a positive test confirms marijuana use.”
Arizona provides strong legal protections for cardholders, notes Amanda Wingfield Goldman, JD, an attorney at Coats Rose in New Orleans. The law prohibits employers from firing cardholders based solely on their status or a positive drug test. Employers can take action only if the employee appears impaired during work hours.
The original statute did not define impairment, making enforcement difficult. Lawmakers later revised the law to define impairment as signs of negligence, carelessness, reduced coordination or dexterity, slowed or slurred speech, glassy or bloodshot eyes, and a detectable odor of marijuana.
The revision also protects employers who take adverse action based on a good-faith belief that an employee was impaired or using drugs during work hours.
Understand How Drug is Used
Medical marijuana has been legal in California for 21 years. As a result, employers in the state have more experience working with employees who use it legally, says John Malanca, co-founder of United Patients Group in Greenbrae, CA. His organization supports education on medical marijuana use.
Employers should first understand how marijuana is used medically. Malanca explains that it does not always impair judgment or physical activity.
“An employee battling a disease as severe as cancer can use a nonpsychoactive product during the day,” Malanca says. “At night, they can take a THC-dominant product to help fight the disease.”
Employers can also manage the legal use of recreational marijuana in the workplace, just as they do with other substances that impair performance, Malanca says.
“Cannabis and alcohol are both legal for recreational use in this state,” he explains. “I wouldn’t allow anyone to come to work intoxicated or smelling of liquor, and the same rule applies to cannabis.”
Malanca compares cannabis use to opioids and other pharmaceutical drugs. “If an employee passes out from drug use at work, it’s not acceptable just because they have a prescription,” he says. “Employers may assume that legalizing cannabis means people will be under the influence at work, but that does not have to be allowed.”
Consider Forms of Medical Use
Richard Kimball, managing partner of HExL, a consulting company in New York City, says healthcare providers must consider the use of medical marijuana during the workday. If an organization does not enforce a zero-tolerance policy and allows legal medical marijuana use, it must establish clear guidelines for its use on the premises.
Most employees can avoid using marijuana at work. However, some may need to take it during the day, just as others take prescribed medications at different times.
The same issue arises when patients require marijuana while admitted.
“In that case, you must consider what is practical and safe in the workplace,” Kimball says. “Smoking marijuana in a hospital setting makes no sense. Vaporizing is questionable, and even edibles may not be appropriate.”
Kimball expects acceptance of medical and recreational marijuana to continue growing. He advises healthcare risk managers to prepare for these challenges, even if they are not yet immediate concerns.
One potential legal issue involves the Americans with Disabilities Act (ADA), which broadly defines disabilities, says Amanda Wingfield Goldman, JD, an attorney at Coats Rose in New Orleans.
“If you take medication to manage a health issue, many could argue that it qualifies as treatment for a disability,” she says.
“It is not unrealistic to expect an employee to file an ADA lawsuit against an employer for interfering with disability-related treatment and failing to provide accommodations.”
Most Employers Ban Marijuana Entirely
When they have any choice at all, most employers opt to prohibit the use of marijuana no matter their state law, says Tim Thoelecke, Jr., president of InOut Labs, a drug testing service company in Morton Grove, IL. “I don’t see the healthcare industry as having any unique concerns, other than access to narcotics on the job.
Healthcare employees, in my view, should be treated as any other safety-sensitive workforce,” he says. “To date, pretty much any case that has made it to court has come out in favor of an employer’s right to a drug-free workplace. One could easily argue that providing a drug-free workplace is not only an employer’s right, but also his/her duty, when it comes to safety.”
Any substance that can impair judgment should be carefully monitored, Thoelecke notes. If a factory worker, for example, is on pain medication that could make him or her unsafe to him- or herself or a co-worker, many employee substance policies require the worker notify human resources so he can be put on light duty or in some other role. “For medical marijuana, I suppose an employer could have the same rule, but since marijuana is still Schedule I, and illegal federally, it can be banned entirely if an employer chooses,” he says. “Most do choose that route.”
