Business Guidance / Insurance Protection

Dear HR – Employees with Valid Medical Marijuana Credentials

The ongoing emotional stress, isolation and uncertainty of COVID-19 has, unfortunately, led to dramatic increases in substance abuse and overdoses. According to a CDC study conducted in June 2020, 13% of Americans reported starting or increasing substance use as a way of coping with stress or emotions related to COVID-19. Another grim statistic from the CDC is the number of people who died from drug overdoses in the 12-month period ending last June. The total number was more than 81,000, a 20% increase year-over-year, and the highest number of fatal overdoses ever recorded in the U.S. in a single year.

For employers, pandemic-related substance abuse trends are bound to materialize among employees as they return from working remotely to onsite work locations and are more directly observable. Being informed and vigilant about individuals’ rights and obligations around use of controlled substances will be more critical in a post-pandemic world.

Normally, in the case of an employee who has a legitimate underlying serious health condition, an employer needs to be mindful of potential protections under the Americans with Disabilities Act (ADA) by engaging in what the ADA defines as an “interactive process” to determine whether an employee is able to perform his or her essential job functions with or without a reasonable accommodation. However, where medical marijuana is the prescribed treatment for such underlying conditions, things can get complicated. The ADA does not recognize health conditions treated by the use of “illegal drugs,” including medical marijuana (still prohibited under the federal Controlled Substances Act), even if legalized in the state where the employer is located. Consequently, the fact that using marijuana may be legal in a particular state does not necessarily prevent an employer from disciplining or terminating employees for using marijuana, including those who present a valid medical ID card.

For example, Pennsylvania prohibits discrimination or retaliation against employees based on their status as a medical marijuana patient. The applicable law, PA Act 16 states, “No employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”

PA employers are cautioned to carefully consider taking adverse action against employees who present valid medical marijuana credentials. The question in the balance to pressure test any such adverse action, would be whether the decision is being driven by the mere fact that medical marijuana has been disclosed (i.e., bias), or rather, is it being driven by a reasonably suspected use of medical marijuana, causing impaired behavior and/or functioning in the workplace?

If, as with the employee in the title scenario, the decision is driven by reasonably suspected impairment in the workplace, PA employers may wonder if state law permits employees to be present in the workplace in a medical marijuana-impaired state. The simple answer is that it does not. In the applicable provision of Act 16, it states that “nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.”

Additionally, PA law provides additional restrictions on working under the influence of medical marijuana while performing safety-sensitive jobs or where safety concerns are paramount, such as with hazardous chemicals, public utilities and duties performed at heights or in confined spaces.

Recommendations:

  • Where impaired behavior/performance is observed, interview the employee as soon as possible following the observation, with a second witness if possible, to ensure suspicions are reasonable and documented contemporaneously with observations. Requiring the employee to immediately submit to a drug/alcohol test is advisable to validate observations.
  • If a valid medical marijuana ID card is presented, PA employers should assess the safety-sensitive nature of the employee’s job before taking any adverse employment action against the employee. They have the right to prohibit employees from being involved in tasks that would put themselves, their colleagues, or the public at risk.
  • PA employers should also keep in mind that applicable state law does not require employers to accommodate the use of medical marijuana in the workplace. 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 in the workplace.
  • Regardless of whether or not safety-sensitive responsibilities are involved, PA employers should take care to avoid potentially discriminatory and/or retaliatory actions against employees with valid medical marijuana credentials, particularly if the employer has not validated their observations of impairment.
  • Where impaired behavior/performance is not an issue with an employee who has valid medical marijuana credentials, employers are advised to be mindful of applicable PA or other state law and engage in an interactive process on some level. Even without ADA requirements being applicable to medical marijuana situations, it is advisable to explore whether or not an underlying serious health condition may be reasonably accommodated and enable the employee to perform their essential job functions.

It is also important to be aware that Pennsylvania is just one of 19 states, including the neighboring states of Delaware and Maryland, that permit prescription and use of medical marijuana. The scope of this article is not intended to cover the specifics of these states’ laws as compared to PA. However, there are similarities and differences that should be thoroughly vetted and considered by employers with a presence in either or both of these states.

Managing the many responsibilities that fall to human resources coupled with the challenges presented by the pandemic can be difficult. The HR Consulting Practice at Univest Insurance provides clients with a broad range of HR compliance, operational and payroll services. To learn more about how we can support your HR team, contact us at 267.646.4467or devinej@univest.net.

 

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