Tim Thoelecke Jr. from InOut Labs Quoted in Healthcare Risk Management
Evolving state laws regarding the legal use of marijuana mean that healthcare providers’ existing policies on drug use should be reviewed to ensure they do not violate labor laws or provide an opportunity for civil litigation, while still ensuring patient safety. Employees may still be prohibited from using illegal substances or being impaired on the job, but legal experts say relaxed marijuana laws create gray areas that must be addressed.
Many states have relaxed marijuana laws in recent years, with some allowing medical use, others also allowing recreational use, and some decriminalizing possession. A total of 28 states, the District of Columbia, Guam, and Puerto Rico now allow medical marijuana, according to the National Conference of State Legislatures. Seven states and the District of Columbia have legalized marijuana for recreational use, including most recently California, Massachusetts, and Nevada, which all passed measures in November 2016 legalizing recreational marijuana.
Marijuana is still illegal at the federal level, so employers can prohibit its use at work and can still test employees for evidence of use, says John A. DiNome, JD, partner with the law firm of Reed Smith in Philadelphia.
“That creates a conflict because employees say the state allows them to use it medically or recreationally, or both, and now you’re drug testing them for something that is legal in your state. They were using marijuana at home, at the same time you were home drinking your beer or bourbon,” he says. “Then they come to work Monday perfectly sober, but the drug shows in their system when you test them. So they ask why you’re terminating them for the use of a legal substance at home.”
That conflict is especially difficult for employees to accept when they use medical marijuana as prescribed, he says.
A Colorado Supreme Court case addressed this issue when an employer fired an employee who had used medical marijuana legally. The employer argued that it was complying with federal law, and in particular it was obligated to comply with the Drug-Free Workplace Act because it was a federal contractor. The Supreme Court ruled in favor of the company, saying that with an obvious conflict between state and federal laws, the employer can take the more conservative position of complying with federal law, DiNome says
Some Hospitals Have a Choice
Federal contractors have no leeway on the issue, says Danielle Urban, JD, partner with the Fisher Phillips law firm in Denver. “If you’re a federal contractor, you can’t allow any marijuana use, regardless
of what state law says,” Urban notes.
For employers with a choice, the question becomes whether you really want to take this hard-line stance on marijuana, DiNome says. “You may not attract the best work force in your state if the state allows the use of marijuana, medically or recreationally,” he says. “You would have to consider that some educated, qualified people come to your state because that substance is legal, and whether you want to eliminate all of those people as potential employees.”
One solution may be to use more advanced testing for the use of marijuana, DiNome suggests. Unlike a breath alcohol test that can determine how impaired a person is at the time of testing, the tests used to detect marijuana use only show that the person used the substance sometime in approximately the past 30 days. More specific tests are available, though they are likely to be more expensive and require a blood sample, DiNome notes.
“You still have to determine what is over the limit and I don’t know that there is any uniform answer to that,” he says. “But if you want to prohibit impairment at work without telling people they can’t do something legal on their own time, that would be the way to go about it.”