In 2014, a Boston-area woman lost her new job at a marketing company before she even started. The reason? Her drug test came back positive for
marijuana. She was fired even though she'd informed the employer she had a physician-issued certificate to use medical marijuana to manage Crohn's disease (an inflammatory bowel condition), and she limited her use to evenings. The employee sued and, in 2017, the courts ruled in her favor, stating that the dismissal was a form of discrimination. Courts in other states, such as Delaware, Connecticut, and Rhode Island, have recently ruled in favor of employees who claimed that employers discriminated against them for medical marijuana use.
Richard Donze, DO, MPH
Medical Director of The Occupational Health Center at Chester County Hospital
Only a handful of cases like this have been tried in the U.S., but more are undoubtedly coming, notes
Richard Donze, DO, MPH, medical director of
The Occupational Health Center at Chester County Hospital in West Chester, PA. He points to the current "disconnect" between federal law, which classifies marijuana as a Schedule I drug with no accepted medical use, and state laws, which increasingly are decriminalizing marijuana. In fact, 33 states and the District of Columbia have legalized medical marijuana use.
In Pennsylvania (PA), Governor Tom Wolf signed the Pennsylvania Medical Marijuana Act in May 2016, and dispensaries began selling medical marijuana in 2018. Patients with one of 23 "serious medical conditions" including anxiety, cancer, epilepsy, PTSD, autism, and inflammatory bowel disease, among others—can use marijuana legally as long as they (1) have a state-issued medical marijuana ID card (after a state-registered physician has verified the presence of a qualifying condition), and (2) purchase the marijuana from a state-licensed dispensary. In just the first year, about 80,000 PA residents signed up.
This has created a quandary for the hundreds of employers who turn to The Occupational Health Center for employee drug testing and other services each year. Some are committed to having a drug-free workplace, following the lead set by the federal government with the 1988 Drug-Free Workplace Act. Others are concerned about safety in the workplace, public safety, and their own liability if a medical marijuana user harms someone or causes property damage.
"Some of our larger clients include hospitals, municipal offices, police forces, school districts, employers of bus and truck drivers, manufacturing—it's a wide spectrum," says Dr. Donze. As a certified Medical Review Officer (a federally-defined function for physicians to "verify" the results of drug testing), he works with employers when an employee's drug test comes back positive, whether before or during employment, after an accident, or when an employer has reasonable suspicion of drug use. But the new medical marijuana law has created what he calls a huge "gray area," especially for those in safety-sensitive fields.
Jacqueline Gallagher, Esq.,
Labor and Employment Attorney
Jacqueline Gallagher, Esq., an attorney who specializes in labor and employment issues with Buchanan Ingersoll & Rooney, PC, says there is a delicate balance between employee rights and public safety. "An employee might say 'I use medical marijuana to help me sleep, I take it between 8 and 10 at night and I come to work at 8 AM and I am perfectly fine.' The example I tend to use is a surgeon: Would you want a surgeon to operate on you after using marijuana the evening before? What about traveling salespeople who drive most of the time? Not only are they a potential risk to themselves or to the public, they can expose their employer to liability."
It's a complicated question that likely will be decided by future court rulings. In the meantime, employers need to be aware of the issue and revisit their policies on employee drug use to make sure they are in line with the new Pennsylvania law.
What the Law Says
For federal agencies, federal contractors, and organizations that receive federal grants, the law is clear: The Drug-Free Workplace Act prohibits employees from using illegal drugs, including marijuana for medical use, since marijuana is still considered illegal by the federal government. The same is true for employers governed by the regulations of the federal Department of Transportation. But for others, the course of action is less clear.
The PA Medical Marijuana Law states that employers may not 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." However, employers can prohibit employees from possessing and using marijuana at work, and they can take action if they find an employee is under the influence of medical marijuana. They also have the right to prohibit employees from being involved in tasks that would put themselves, their colleagues, or the public at risk.
This introduces yet another gray area for employers, says Dr. Donze, because having THC, or tetrahydrocannabinol, show up in a urine test doesn't necessarily mean someone is impaired at the time. (THC is the compound in marijuana that produces the high; CBD, or cannabidiol, which is found more abundantly in marijuana's cousin, hemp, does not. CBD and some FDA-approved CBD formulations with low THC content have been reclassified into Schedule V by the Federal Drug Enforcement Administration, opening the door for approved medical uses.) Blood testing for THC is more accurate, but the science is still evolving as to what level constitutes impairment. For now, employers face the challenge of adopting the limits specified in Pennsylvania law or defining their own stricter limits based on other scientific studies: "They would have to say, 'If the test comes back at this level, then we have to exclude this employee from safety-sensitive work,'" says Dr. Donze.
Gallagher also calls employer' attention to the Pennsylvania Human Rights Act (PHRA), which, like the federal American with Disabilities Act (ADA) of 1991, prohibits employers from discriminating against employees with a disability—and those certified to use medical marijuana may qualify as disabled. Under the PHRA, employers have to make "reasonable accommodations" that will enable the employee to do the job as required, as long as these do not impose "undue hardship" on the employer.
What Employers Can Do
Until the courts hand down more decisions in medical marijuana cases, or the federal government moves THC out of the Schedule I category, Dr. Donze usually advises employers to create a medical marijuana policy in partnership with legal counsel. While inevitable nuanced exceptions might make an airtight playbook more ideal than real, some key components are still recommended:
Write down your policy, using existing policies as a model. Even though Dr. Donze notes that he can’t give legal advice, he often advises clients to start with their alcohol use policy as a model. "Bring up your alcohol policy and substitute the term 'medical marijuana' instead," he says. "Alcohol is a legal substance that can be mind-altering and performance-altering. Employers can state that it can't be used on the premises and employees can't come to work under the influence." With the help of their legal team, employers will need to define a blood THC level that they consider unsafe for those involved in safety-sensitive tasks if they plan to do for-cause/reasonable-suspicion testing.
Revisit your job descriptions. In light of ADA and the PHRA, employers should also "update job descriptions to indicate what are safety-sensitive jobs and what the essential functions are," says Jackie Gallagher. "Because of the divide in the law, this is a great time to do that."
Define the process you will follow if an employee tests positive for THC and has a medical marijuana IC ID card. Employers often turn to Dr. Donze when an employee tests positive for other controlled substances, such as prescription narcotics for pain or anti-anxiety medicines. Typically, he works with the employee and the prescribing physician to make sure the use is medically necessary and not likely to affect job performance or others' safety. The situation with medical marijuana is a bit different, since the certifying physician doesn't actually prescribe the drug, but he notes that a similar case-by-case approach likely makes sense.
If there are safety concerns related to medical marijuana use, then employers can follow what the Equal Employment Opportunity Commission (EEOC) calls an "interactive process," says Jackie Gallagher. Basically this means that the employer and employee need to work together to see if accommodations can be made so the employee can do the job safely. "Maybe there's alternative treatment, or the shift time can be changed, or certain duties can be handled by another employee," she says.
Train supervisors to recognize marijuana impairment. As more employees use marijuana not just medically but recreationally—in fact, Dr. Donze says that most positive drug tests he sees are still related to recreational use, although this may change as the medical indications grow—supervisors need to be able to recognize signs that someone might be under the influence at work. Red eyes, delayed reaction times, poor muscle coordination, and increased appetite can all be tip-offs.
Finally, employers should pay attention to any changes in the laws as well as court decisions. "There is not set precedent yet," says Gallagher, noting there are two cases she knows of that are pending in the Pennsylvania court system. "Should they employ someone who uses medical marijuana? The answer is yes, but it depends on what the job is because you have to weigh the individual's need to use the substance against the obligation to provide a safe workplace for other employees and the public."
And the issue isn't going away anytime soon, says Dr. Donze. Eleven states and Washington, DC, have legalized marijuana for recreational use, with more likely to follow suit. But employers still have to address issues of safety and liability. "Whether medically or recreationally, in some states you can use, but you can't be under the influence at work. So there still have to be policies and regulations. If more accidents start happening, public sentiment [favoring marijuana decriminalization] could very well swing the other way."
"It's unfolding every day," says Jackie Gallagher.
The Occupational Health Center (OHC) at Chester County Hospital has been serving the work-related health care needs of the business community since 1988. For more information about medical marijuana and drug testing, contact 610-738-2450.
Related Information from Chester County Hospital