PA: As Medical Marijuana Use Grows, Company Drug And Alcohol Policies Under Scrutiny

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A Quinnipiac University poll last year had 94 percent of respondents saying they favor legalization of medical marijuana.

Presumably, at least some of those supporters own or operate companies or otherwise manage staff as part of their professional responsibilities.

And, despite that expressed support, questions can bubble up for employers when it comes managing a staff member who legally and legitimately uses medical marijuana.

At its root, says Katherine Koop Irwin, an employment law attorney at Tucker Arensberg, Downtown, employers may feel caught in a stand-off between conflicting obligations: How do they provide a safe work environment while protecting their workers’ rights?

Part of it has to do with peculiarities of cannabis — traces of which can be detected in blood tests for a month or more after use, long after there’s any question of impairment. A positive blood test may not mean much at all.

There’s an added wrinkle for companies holding federal contracts: Pennsylvania may have a two-year law on the books legalizing medical marijuana but the U.S. Drug Enforcement Agency still considers its use a criminal offense.

So an employer may be left wondering if it could be sued for discrimination by disciplining or limiting an employee certified to use medical marijuana. Even if it doesn’t, it may risk being in violation of the federal Drug-Free Workplace Act of 1988.

What’s an employer to do?

Ms. Koop Irwin suggested at Tuesday’s Pittsburgh Business Group on Health forum that employers come up with set criteria establishing “reasonable suspicion” that an employee is impaired, such as falling asleep at their desk or an inability to concentrate on a work task.

The point is, it probably takes more than a blood test to act against an employee. She suggests proactively talking to the employee about their usage and whether it could pose a safety threat.

The standard under Pennsylvania’s 2016 law indicates employers “may have to show that their performance falls below” an acceptable standard for that job, Ms. Koop Irwin said.

State law does prohibit workers who use medical marijuana from holding certain kinds of jobs, such as working with high-voltage electricity or working in a mine or other confined space. The test is whether the marijuana use could pose a threat to the employee or co-workers.

What about those zero-tolerance drug policies?

Ms. Koop Irwin said she advises employer clients to have policies regarding illegal drug use, noting the possible exception of state-approved medical marijuana use, but prohibiting its use or possession in the workplace as well as forbidding coming to work impaired.

With Pennsylvania’s medical marijuana law only two years old and the first products sold this past February, many of the legal employment ramifications of medical marijuana are still to be worked out.

“We’re looking for guidance from other states that have developed their medical marijuana systems,” Ms. Koop Irwin said.

But employers are not waiting. She said she’s revised drug and alcohol policies for 10 different employers just in the past month, primarily from the health care, manufacturing, education and tech sectors.