QUESTION: In light of Oklahoma’s recent legalization of the use of medical marijuana, we are reminded that they join a majority of states that have already done so, begging the question of how does this affect the workplace and what requirements are placed on employers to accommodate the use of medical marijuana?
ANSWER: The answer to this question is unfortunately not simple, but rather varies state to state. As the laws pertaining to use of medical marijuana are unique to each state, so too are the laws governing the workplace and an employer’s duty to accommodate for such use. Although Oklahoma has yet to address the effect its legalization may have on the workplace, states that have been faced with these issues may lend some guidance. Some states, such as Georgia and Washington, have legalized use of medical marijuana but still permit employers to have a written zero tolerance policy prohibiting the on-duty and off-duty use of marijuana. Other states, such as Arizona and Pennsylvania, prohibit employers from taking any adverse action against an employee for use of medical marijuana. Importantly, those states that may prohibit adverse actions for an employee’s use of medical marijuana tend not to impose any affirmative duty on the employer to accommodate that employee’s usage. Further, there are some states that disallow such adverse actions, yet do not prohibit employers from banning the use of such substances during work hours or on the work premises. Not to be forgotten are the states that either have not yet legalized medical marijuana use or that have not addressed its effect on the workplace, namely Oklahoma.
As exhibited, these laws are not so cut and dry; making it important to take a deeper look into what exactly is and is not required of the employer. With the ever-growing popularity and shift toward legalization of medical marijuana use in the country, it is important to remain aware of your state’s stance on usage as well as any prohibitions or requirements placed on the employer when legalized.
QUESTION: A patient is asking the hospital staff to allow him to use medical marijuana that he obtained in compliance with state law. Should we let him?
ANSWER: This is a tough question especially in light of the recent, increased, legal acceptance on a state level of both medical and recreational marijuana. The patient in the question is claiming that he obtained the medical marijuana in compliance with state law. In such a situation, you should ask yourself a number of questions. First, does your state law protect facilities or staff that permit medical marijuana use? For example, Maine law states that hospitals and staff members will not be liable for facilitating the use of medical marijuana by certified, admitted patients, as long as the marijuana is not smoked or vaped. Second, does your state law require a hospital to accommodate a patient’s use of medical marijuana? Minnesota has a law on the books that says, in part, “no [health care] facility shall unreasonably limit a patient’s access to or use of medical cannabis to the extent that use is authorized by the patient.”
Even if the answer to these first two questions is “yes,” you have to ask yourself if you are willing to accept the legal risk under federal law. Marijuana is a Schedule 1 controlled substance under the federal Controlled Substance Act. Regardless of state laws to the contrary, it is still a violation of federal law to manufacture, possess or prescribe marijuana for either medical or recreational purposes. The Medicare Conditions of Participation (“COPs”) for hospitals state “drugs and biologicals must be controlled and distributed in accordance with applicable standards of practice, consistent with Federal and State law.” The COPs do not anticipate that Schedule 1 controlled substances will be stored or distributed in hospitals. The applicable regulations and the Interpretive Guidelines to the COPs only refer to Schedule 2-5 substances.
Some hospitals have accepted the risk and permit patients to bring their own medical marijuana into the hospital for administration. At least one of those hospitals has put the following safeguards in place:
- Hospital staff (such as nurses and pharmacists) are not permitted to assist with dispensing or administering medical marijuana. The drug must be self-administered.
- The hospital is required to verify that the patient is registered with the state’s medical marijuana program.
- The hospital must provide a safe for the storage of medical marijuana in the patient’s room. Hospital employees do not access the safe or handle the medical marijuana at any time.
- The medical marijuana must be in liquid or capsule form, and must have been provided by an in-state dispensary.
That being said, such safeguards do not protect you from CMS disapproval or sanctions. Although it is a fascinating topic with numerous legal issues to consider, the fact is that marijuana continues to be a Schedule 1 drug under federal law. Consequently, there is risk that CMS could take action based on the COPs.