Assess current drug policies in light of pot legalization
Risk managers in states in which marijuana laws are being relaxed should assess their current drug policies and testing requirements to determine if they should be revised, advises Cheryl D. Orr, JD, a partner with the law firm of Drinker Biddle & Reath in San Francisco.
Administrators in other states also should go ahead with an assessment, she says. Revisions might not be necessary immediately, but an early analysis can put you in a better position if your state follows the lead of others on marijuana laws.
Hospitals in Arizona, Connecticut, Rhode Island, Illinois, Delaware, and Maine should revise their policies to the extent that they prohibit off-duty medical marijuana use, Orr says.
A careful assessment is necessary because in those jurisdictions that have enacted employment protections for medical marijuana use, Orr says hospitals face potential liability related to any adverse employment actions they take against employees or applicants who are medical users.
"To avoid these risks, hospitals in such jurisdictions should carefully review their policies and practices to ensure that they are compliant with the applicable law," she says. "In addition, hospital risk managers in all jurisdictions should consider following developments in marijuana legalization in their respective jurisdictions and may wish to obtain qualified employment counsel to assist with compliance."
Orr suggests that employers in states that generally do not provide for employment protections still should consider whether their state has a "lawful activities" or "lawful products" statute or whether courts in their state might be more favorable to finding a clear public policy protecting medical marijuana users. Past cases suggest that courts in these states likely will find that their state law does not establish a clear public policy in favor of medical marijuana patients, she says.
Drug testing is another issue to consider. Employees are likely to contest positive test results for marijuana, particularly because marijuana metabolites remain in an individual's system for a long time. The employees are likely to argue that they were not impaired while working and the positive test was caused by past recreational use in a state in which it is legal. Hospitals in most states can stand firm on their complete prohibition on the drug, but you can count on more resistance from employees, Orr says.