October 30th, 2019 | Valerya Poltorak, GM, Sterling Healthcare & Life Sciences

HR Legislation in the Stoned Age: Marijuana Legalization

HR Legislation in the Stoned Age: Marijuana Legalization

Roughly 62% of Americans say marijuana use should be legalized. This sentiment has been steadily increasing over the past decade, according to a Pew Research Center survey. Although the percentage of U.S. adults who support legalization has changed little from about a year ago—when 61% favored it— it is double what it was in 2000 (31%).

This trend poses unique challenges to employers in the healthcare and life sciences industries, where vulnerable populations rely on workers for their well-being and safety.

But first, let’s take a look at the road to legalization. In 1996, California became the first state to legalize marijuana for medical use. Fast forward to 2019, where thirty-three states, the District of Columbia, Guam, Puerto Rico, and the US Virgin Islands have since followed suit.

In 2012, Colorado and Washington state spearheaded the legalization of marijuana for recreational use. Subsequently, nine other states—California, Maine, Alaska, Massachusetts, Michigan, Nevada, Oregon, Illinois and Vermont— and the District of Columbia have legalized it.

Legislation protecting employees

Some states have gone further than just decriminalizing marijuana; they’ve also passed laws and established policies that protect the rights of employees who use it.

In Maine, the Medical Use of Marijuana Act prohibits employers from refusing to employ or exact a penalty against a person over the age of 21 based solely on that person’s status as a qualifying patient or caregiver under the MMUMA, unless doing so would place the employer in violation of federal law or cause the employer to lose a federal contract or funding.  Further any testing for marijuana must be in compliance with a Maine Department of Labor approved drug testing policy.

Pennsylvania’s Medical Marijuana Act (MMA) bars employers from firing, threatening, refusing to hire or otherwise discriminating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”

The law does make exceptions for situations where the employee’s conduct falls below the expected standard of care or the employee’s role is safety-sensitive. However, the term “safety-sensitive” is subjective and open to interpretation.

Connecticut and New Jersey have similar legal frameworks guiding employer conduct concerning medical marijuana use by employees.

A new law in Nevada—effective January 1, 2020— prohibits employers from refusing to hire prospective employees who test positive for marijuana. However, the law makes an exception and does not apply to people like EMTs, firefighters, motor vehicle operators, and those who perform jobs that the employer deems could adversely affect the safety of others.

This spate of enactments of employee protection laws has forced healthcare companies, hospitals and life sciences firms to revisit and review their policies around marijuana use and testing for it. Some employers have maintained or adopted zero-tolerance stances, while others have reacted in the opposite way, by relaxing their testing requirements.

Federal Status of Marijuana

Despite its legalization in many states, marijuana remains a Schedule I narcotic under the Controlled Substances Act so it is still illegal on the federal level.

“Federally, marijuana is on the same level as other highly illegal drugs, such as heroin,” David Standa, Partner at the top law firm, Locke Lord, says. “That being said, federal enforcement is almost non-existent at the moment, and there really isn’t an appetite to go after people who are using marijuana within their state’s legal programs.”

This means that laws enacted by states to protect employees who use marijuana do not apply to federally mandated employers.

“If you’re an employer who is administering a US Department of Transportation (DOT) program, or some other federally mandated program, then federal laws prevail. And, your drug testing processes have to continue to be administered as per federal requirements,” John Mallios, Senior Vice-President of Drug & Health Screening says. Employers who receive a federal contract of at least $100,000, or are recipients of federal grants are required by the Drug-Free Workplace Act of 1988 to maintain drug-free workplace policies.

Marijuana Employment Litigation

There have been several high-profile cases in the courts in which companies have had to defend their existing policies regarding medical marijuana use. These cases have focused mostly on wrongful termination claims. In some instances, the courts have sided with the employee and in others with the employer. At this time, there is no clear precedent coming from the courts.

This adds to the challenges facing HR professionals in highly regulated industries like life sciences and healthcare, and how they should address the legalization of marijuana and its impact on these unique workplaces.

Creating and Amending Policies on Employee Marijuana Use

Legal protection for employees that use marijuana, especially for medical purposes, varies significantly from state to state—making it difficult to have policies that apply to all employees across the board. Consequently, to ensure legal compliance and avoid lawsuits, healthcare employers with locations in more than one state should be cognizant of the individual laws’ provisions.

“A clear and well-considered policy is the cornerstone of an effective program to help keep the workplace safe and also to shield employers from claims of discrimination and other types of disputes that could emerge,” Mallios says.

Policies should prioritize and properly reflect the specific rights accorded to medical marijuana users, as well as employer rights, responsibilities, and restrictions concerning workplace drug testing.

“You can have a national policy that broadly says that you (the employer) do not require/perform marijuana testing.” Ryan Holz, a partner at Locke Lord, says on how employers should develop their company wide-policies. “But if you want to have a national policy that involves testing, you have to include addendums that specifically identify state-specific regulations that constitute exceptions to your general policy, where they exist.”

Mallios points out the latitude that employers still possess, clarifying that “While it may be illegal to discriminate against or penalize employees for using marijuana, no state or federal law prevents employers from requiring that their employees are not under the effects of any substance while working. Neither do they prevent employers from viewing and treating marijuana as they would any other substance— such as alcohol or prescription medication—with the potential to impair the users’ senses.”

To shield themselves from litigation, some employers have taken to training supervisors on impairment. “In states where you can only take adverse action based on impairment, it is paramount that you are accurately determining impairment,” Holz says. “Unfortunately, even the best training is not foolproof—many of the symptoms of impairment can be symptoms of something more benign. That said, training supervisor level employees to evaluate impairment is a best practice.”

Once employers have their compliant policy and procedure in place, they must also be ready to address issues such as:

  • What happens when a confirmed positive test for marijuana is returned?
  • Will the employee be subject to discipline, identical to actions imposed for other prohibited substance use?
  • Will the company perform certain on-going post-hire monitoring and screening?

Other important policy considerations for Healthcare and Life Sciences employers include:

  • Requiring employees to disclose use of any physician-prescribed drug, with a statement from the physician specifying knowledge of the employee’s job functions and determination if use can affect performance or safety. This is particularly relevant for employees who are or will be performing “safety-sensitive” or “at risk” job functions.”It is also advisable that employees delineate safety sensitive jobs up front as a risk management technique. This way there is full disclosure to employees about what is expected of them. It also precludes allegations against the employer that it has an ad hoc definition of safety sensitive that’s not being uniformly applied,” Holz adds.
  • Providing employees with educational information about the professional and personal risks of abuse, and for reducing the stigma of drug addiction and treatment.
  • Offering an Employee Assistance Program (EAP) so those struggling with an unmanaged substance abuse problem can have access to confidential counseling and treatment.
  • Permitting employees to voluntarily disclose an unmanaged substance abuse problem and offering some measure of job protection following successful treatment.

The Future of the Stoned Age: Key Takeaways for the Healthcare & Life Sciences Industries

The trend of states legalizing the medicinal and recreational use of marijuana will likely continue. Protecting a company and ensuring the safety of the staff and public will need to be balanced with an evolving regulatory landscape. Hiring and retaining employees in states where marijuana is legalized will continue to be a challenge, requiring review and possible revisions to hiring, screening, and monitoring processes,

Employers must also be mindful of new legislative developments and related social trends, and to always remember to act to protect the safety of employees, customers and the public.

Use of impairing substances with potential to introduce hazards to the workplace, or to impact public safety, should be diligently monitored and addressed by employers.

Qualified legal counsel is necessary for ensuring employer objectives and interests remain supported and protected, and to ensure compliance with applicable laws.

Sterling’s Healthcare & Life Sciences team comprises of industry experts that help employers create and implement safer workplace policies to comply with state and federal hiring regulations. To learn more about Sterling solutions, visit www.sterlingcheck.com/healthcare.

The information contained herein is for informational purposes only. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. Sterling is not a law firm and none of the information contained in this notice is intended as legal advice. This and other important information can be found on the Sterling website.

Map of states and status of marijuana legalization: IndianaSenateDemocrats.org, 09/25/19
Legalization timeline: National Conference of State Legislatures, as of 8/1/19

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.