HRM Magazine

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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.”

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 put employers in an even more difficult position by making it illegal to discriminate against employees who use marijuana legally, notes Joshua Horn, JD, partner with the Fox Rothschild law firm in Philadelphia. In those states, employers are forced to choose between complying with state law or federal law, and many may decide that it is more likely the state rather than the federal government that will take action against them for discrimination.

Federal funding, however, could shift that balance in favor of federal law

“An institution that relies on federal funding may be at risk with that funding if they don’t test people for Schedule I drugs as part of hiring and retention in employment,” Horn says. “I suspect that is something that is going to be litigated at some point until we get more clarity on these conflicts.”

Safety considerations almost always trump an employee’s right to use any substance that could affect performance, notes Bob Morgan, JD, special counsel with the Much Shelist law firm in Chicago.

“Whether your employee is driving a truck cross-country or working in your ICU, there is almost always a protection that allows employers to enforce policies to protect those that they’re serving,” Morgan says. “That applies no matter what the cannabis laws are in your state. You’re dealing with employees that are directly impacting the health and safety of individuals, so the obligation of protecting the people you are serving is paramount.”

Unemployment compensation also could be disputed. An employee fired for marijuana use could argue that he or she did nothing illegal to prompt the dismissal and is due unemployment compensation. That question also is not yet settled, 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

“Cardholders” — those who are legally allowed to use medical marijuana — should be handled carefully in states that specifically prohibit discrimination against them, says Danielle Urban, JD, partner with the Fisher Phillips law firm in Denver.

Simply knowing that the person is a cardholder is not enough reason to take action, she says. “Even if you have chosen to take a zero-tolerance position, you can’t fire this person because you know he or she is a cardholder and presumably using medical marijuana,” she says. “If you’re going to take any action, I would advise against disciplining or firing the person unless you have a positive test showing the use of marijuana.”

Arizona is an example of a state that included substantial protection for card holders in its statute, notes Amanda Wingfield Goldman, JD, an attorney with the law firm of Coats Rose in New Orleans. The law includes provisions that prohibit employers from taking adverse action, such as firing cardholders based on that employee’s status as a cardholder, or even a positive drug test, unless the employee appears impaired during work hours.

The original statute left employers with no way to define impairment, so the law was revised to define impairment as evidence of negligence, carelessness, decreased coordination or dexterity, slowed or slurred speech, glassy or bloodshot eyes, and detectable odor of marijuana. The revision also gave employers protection to take adverse action in a good faith belief that the employee was impaired or using drugs during workplace hours.

Understand How Drug is Used

Medical marijuana has been legal in California for 21 years, so employers in that state are more familiar with how to work with employees using the substance legally, notes John Malanca, co-founder of United Patients Group in Greenbrae, CA, which supports education on the medical use of marijuana. Employers should first understand how marijuana is used medically and that it does not always impair judgment or physical activity, he says.

“An employee battling a disease as awful as cancer can do a nonpsychoactive during the day, and at nighttime use the THC-dominant product to attack the disease at night,” Malanca says.

The legal use of recreational marijuana also can be managed in the workplace, just as with any other legal substance that can impair performance, Malanca says.

“Cannabis is recreationally legal and alcohol is recreationally legal in this state. I’m not going to allow you to come to work smelling like liquor or intoxicated, and the same applies to cannabis,” he says. “Like with opioids and other pharmaceutical substances, if the person comes to work and passes out from drug use, it’s not OK just because he has a prescription and is using it legally. Employers can get the idea that legalizing cannabis means people will be under the influence at work, and that does not have to be allowed.”

Consider Forms of Medical Use

Use of medical marijuana during the work day also is a concern for healthcare providers, notes Richard Kimball, managing partner of HExL, a consulting company based in New York City. If the organization does not take a zero-tolerance stance and acknowledges that employees may use medical marijuana legally, it may be necessary to establish policies on how the substance can be used on the premises, he says. Most employees would be able to avoid using it at work, but some may find it necessary to take the drug during the day just as people take other prescribed medications at different times of day.

The same issue applies if patients need to use the substance while admitted.

“In that case, you’re going to have to look at what’s practical and safe in terms of the workplace,” he says. “Smoking marijuana wouldn’t make any sense in a hospital setting, vaporizing is questionable, and even edibles are probably questionable.”

Kimball expects the acceptance of medical and recreational marijuana use to continue growing, so he says healthcare risk managers should expect to confront these issues soon, even if they don’t have to immediately.

One potential avenue of litigation is the Americans with Disabilities Act (ADA), in which the definition of disabilities is very broad, says Amanda Wingfield Goldman, JD, an attorney with the law firm of Coats Rose in New Orleans.

“If you take a medication to alleviate any sort of problem you have, a lot of people could argue that’s medication for a disability,” she says.

“It is not farfetched to think of an employee bringing an ADA case against the employer for interfering with disability-related treatment and not making 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.”