Changing state marijuana laws shake up drug policies at hospitals
Will you have to allow its use when legalized?
With more states legalizing or decriminalizing the use of marijuana, hospital risk managers are forced to consider the implications for their drug use policies and testing programs. Many questions remain unanswered as healthcare providers deal with this new development.
Will you have to accept the smell of marijuana drifting from the employee break room? Can you still test for marijuana use? Can you prohibit use of the drug on an employee's off hours?
Healthcare providers in the affected states are in uncharted territory, and others should watch their response, says Cheryl D. Orr, JD, a partner with the law firm of Drinker Biddle & Reath in San Francisco. Only two states — Washington and Colorado — have legalized marijuana, but Orr says the law is in flux and more states could follow. Also, several states have enacted laws that reduce criminal penalties or provide exceptions or defenses for medical marijuana use.
Regardless of the legal status of marijuana, hospitals still can regulate its use in the workplace, Orr says.
"In those jurisdictions where marijuana has been legalized, hospitals, like other employers, may have to tread more lightly when it comes to taking adverse actions against employees who are off-duty marijuana users," Orr says. "However, given that it can impair functioning, hospitals likely do not need to concern themselves with the effect of legalization on maintaining drug-free workplaces. Just as hospitals can prohibit on-duty alcohol use, they can prohibit on-duty marijuana use in the current legal landscape."
Colorado attorney Thomas J. Overton, JD, a partner with The Overton Law Firm in Denver, has been considering these issues since September 2013, when his state made recreational use of marijuana legal and allowed its retail sale. Overton says that legalization has prompted concern for all employers but healthcare providers in particular.
Orr notes that marijuana remains illegal under federal law. That fact means that in all jurisdictions where there is no state or municipal law regarding marijuana use, hospitals arguably are free to prohibit employees and contractors from using marijuana off duty, she says. Even medicinal marijuana can be prohibited, she says.
Overton underscores that point by noting that even aside from employment concerns, marijuana users can run into trouble with federal law enforcement even if the state says it doesn't mind.
"That's pretty important because it not only impacts the individual's outcome, but it can give the hospital administrator a basis for prohibiting its use," Overton says.
Some providers are establishing policies on marijuana use. MemorialCare Health System in Fountain Valley, CA, does not permit marijuana smoking on hospital property, even with a medicinal permit, says John C. Metcalfe, JD, FASHRM, vice president of risk management services. "Although marijuana has been legalized in California for medicinal use under a physician's supervision and prescription, its use is still illegal under federal law," Metcalfe says. "Therefore, a hospital allowing marijuana use even under a physician's supervision and prescription would be subject to search, seizure, and prosecution under federal law. That said, some physicians get creative and discharge their patients with a day pass so they can use their marijuana to help relieve what ails them."
Of the 22 jurisdictions that have enacted statutes permitting the medicinal use of marijuana, Orr says only six — Arizona, Connecticut, Rhode Island, Illinois, Delaware, and Maine — have placed limits on employers' ability to take adverse actions against employees based on their medical use of the drug. In addition, she says, supreme courts in California, Oregon, Washington, and Montana, and a Colorado court of appeals, all have held that employers are privileged to take adverse actions against employees who are medical marijuana users.
"Courts also have held that the federal prohibition on marijuana use preempts any argument that an individual is protected from disability discrimination on the basis that they are a medical marijuana user," she says.
The issue can be trickier in some states — including California and Colorado — that have laws that prohibit employers from taking adverse actions against employees for "lawful" off-duty conduct. Terminated employees have argued that such laws protect them from adverse employment actions based on their medical marijuana use, Orr explains. The law has not been tested sufficiently to know with any certainty how courts will judge the issue, but a few courts have rejected such claims, Orr says. (See the story on p. 40 for more on how case law affects these decisions.)
"It appears that except where a statute provides to the contrary, in most states that have legalized medical marijuana use, it appears that courts will permit employers, including hospitals, to prohibit off-duty use," Orr says. "With those statutes in place, the employer is more constrained."
To further complicate the matter, Orr notes that the limits placed on employers can differ when the marijuana use is medicinal, rather than recreational. In the six states that have enacted explicit employment protections for medical marijuana use, employers may not prohibit off-duty medical use of marijuana.
"Of course, these enactments do not disallow hospitals from prohibiting the use of marijuana at work and maintaining a drug-free workplace. Likewise, employers in these states may prohibit off-duty recreational marijuana use by individuals who do not fall within the ambit of the relevant medical marijuana legislation," Orr says.
Hospitals that receive federal funding or are subject to federal drug-testing or drug-use restrictions — that would be most hospitals — are free to continue to prohibit use of marijuana when off duty, Orr says. "Any state enactments to the contrary likely would be considered preempted by a court, and the statutory employment protections in several states take this into account," she says. "For instance, the employment non-discrimination provisions in both Arizona and Delaware expressly carve out employers who would lose monetary- or licensing-related benefits under federal laws or regulations." (See the story on p. 40 for more on assessing your drug policies.)
In addition, Orr notes, the Department of Transportation (DOT) regulates and provides drug testing requirements for certain safety-sensitive positions, so it is "unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's regulations to use marijuana." That federal position on safety-sensitive positions could be used to support a hospital's prohibition on all use of marijuana, she suggests. (See the story on p. 40 for more on a hospital's right to prohibit marijuana use.)
The DOT definition of marijuana impairment — 50 ng/ml of THC, the active ingredient in marijuana, in the blood — is a good threshold for hospitals to use, Overton suggests. The most important step for hospital risk managers, he says, is to notify employees of how the hospital will respond to marijuana use.
"It is only normal for employees to wonder how the changing drug laws will affect their employment, and I'm afraid the most likely conclusion is that it's legal so you can't be terminated for doing it on your off hours," Overton says. "That is not necessarily the case, but you can get into problems if you don't have a clear policy and follow it, and if you don't clarify the situation with employees."
State law can vary widely and could influence how hospitals address the situation, says Kevin Troutman, JD, an attorney with Fisher and Phillips in Houston. He notes that some hospitals prevent tobacco use by employees, even off duty, but some states prohibit that policy.
"If you are able to prevent marijuana use, you can expect some level of pushback from employees," Troutman says. "Your response should be that even with legal substances, you can establish a threshold at which you determine the usage affects job performance and amounts to a violation of your drug policy. The hospital is within its rights to set a low bar for the use of marijuana on the grounds that its use can affect performance and safety."
- John C. Metcalfe, JD, FASHRM, Vice President, Risk Management Services, MemorialCare Health System, Fountain Valley, CA. Telephone: (562) 933-2000. E-mail: firstname.lastname@example.org.
- Cheryl D. Orr, JD, Partner, Drinker Biddle & Reath, San Francisco. Telephone: (415) 591-7503. Email: Cheryl.Orr@dbr.com.
- Thomas J. Overton, JD, Partner, The Overton Law Firm, Denver. Telephone: (303) 832-1120. Email: email@example.com.
- Dave Scher, JD, Principal, The Employment Law Group, Washington, DC. Telephone: (202) 261-2802. E-mail: firstname.lastname@example.org.
- Kevin Troutman, JD, Partner, Fisher & Phillips, Houston, TX. Telephone: (713) 292-0150. E-mail: email@example.com.