Medical Marijuana Impacts the Workplace: Use involves more than patients – employers must confront the effects.

Monday, November 7, 2016 - 11:57
Joseph Sileo

Joseph Sileo

Much speculation and unfounded fears have created a cloud of uncertainty around Pennsylvania’s new medical marijuana law. Of particular concern is how the law will impact the workplace.

People unfamiliar with the law mistakenly picture a group of employees with marijuana prescriptions for minor ailments smoking joints by the office water cooler. Not so.

Although Pennsylvania’s Medical Marijuana Act (MMA) was signed into law by Governor Tom Wolf in April, the governor’s office says implementation won’t happen until at least the fall of 2017 and possibly early 2018. The lag time is allowing the Pennsylvania Department of Health to write regulations and provide details about how MMA will be handled.

Regulations coming from the Pennsylvania Department of Health will provide important details with respect to implementation of the MMA, which became law in April. For now, a better understanding of the MMA’s basic concepts should help to clear the air.

Who Qualifies?

When the program is fully up and running within two years, only certain certified users – those under a physician’s care for treatment of one or more specified serious medical conditions – will be eligible to use medical marijuana. These conditions include:

  • Amyotrophic lateral sclerosis
  • Autism
  • Cancer
  • Crohn’s disease
  • Damage to the nervous tissue of the spinal cord
  • Epilepsy
  • Glaucoma
  • Huntington’s disease
  • Inflammatory bowel syndrome
  • Intractable seizures
  • Multiple sclerosis
  • Neuropathies
  • Parkinson’s disease
  • Post-traumatic stress disorder
  • Severe chronic or intractable pain of neuropathic origin or which cannot be treated with therapy
  • Sickle cell anemia

Medical marijuana will not be prescribed, sold in pharmacies or smoked. Rather, to be eligible to purchase medical marijuana, a patient must be under the care of a physician registered with the Department of Health, and the registered doctor must issue a certification that the patient has one or more of the serious medical conditions noted above. If issued a certification, the patient could then apply to the Pennsylvania Health Department for an identification card. With the identification card, the patient may purchase medical marijuana at one of 150 authorized dispensaries.

Also, note that public and private insurers and health plans are not required to provide coverage for medicinal marijuana.

A certified user will not be permitted to smoke medical marijuana; it will be dispensed only in pill, oil, topical (gel, cream, ointment), vaporizer, nebulizer, tincture or liquid form.

Workplace Impact

The law makes clear that employers will not be required to allow marijuana use at the workplace, tolerate employees working while they are “high” or forgo reasonable drug policies.

For example, the law states:

“Nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”

The law also prohibits certified users from performing certain safety-sensitive jobs while under the influence of medicinal marijuana, including operating or controlling chemicals that require a government permit; operating or controlling high-voltage electricity or any other public utility; working at heights or in confined spaces, such as mining; performing tasks that the employer deems life-threatening to the employee or other employees; and performing any duty that could result in a public health or safety risk.

This provision obviously raises some questions as well. For example, if the law contains an express provision that an employee in a safety-sensitive job cannot work while under the influence of medical marijuana, then what about the employee who is not in a safety-sensitive job? This safety-sensitive job provision also could be read as somewhat at odds with the provision referenced earlier. It is anticipated that the regulations to be issued by the Department of Health will clarify and resolve these issues.

There is no need to make workplace policy changes right now. Until identification cards are issued, employers can and should maintain and enforce existing policies. When the law takes full effect – and by then the MMA regulations will have been issued and “under the influence” defined – it will be advisable for employers to re-evaluate workplace drug policies, consider whether any changes are necessary and otherwise ensure compliance with the law.

Despite some uncertainty until the regulations are issued, employers should expect that they will retain significant discretion in connection with workplace drug policies.

Finally, differences between state and federal law also create some uncertainty. Under federal law, marijuana use remains illegal and cannabis remains a Schedule I narcotic. However, 24 states have legalized marijuana to some degree for medical purposes and, in some cases, even for recreational use. This trend toward legalization will surely continue, and eventually federal law will follow suit. Moreover, the federal government cannot force states to criminalize conduct that is illegal under federal law, nor can it force state and local police to enforce federal laws. There are no known cases of the federal government prosecuting an individual for a small amount of marijuana similar to what would be involved in medical marijuana use within states where it is legal.

The law may undergo tweaking as it moves into the dispensing phase and the anticipated regulations will provide much needed detail and clarification to the MMA. Despite some uncertainty right now and the possible need for future workplace adjustments, it is expected that the implementation of the MMA will allow for a proper balance so that certified user employees are afforded the benefit of lawful, outside-of-work medical marijuana use for serous medical conditions, while at the same time, employers will maintain the ability to protect the health and safety of employees and maintain reasonable workplace drug policies.