Full implementation of Pennsylvania’s medical marijuana law remains a year or so away, but experts say it’s high time that employers started preparing.
To help that cause, the Lancaster Chamber of Commerce & Industry brought together medical and legal experts to prepare human resource professionals at local companies prepare relevant workplace policies and rules.
Here are some highlights from that discussion.
“This is a sexy topic,” said attorney Jonathan Spadea of The Chartwell Law Offices in Harrisburg, predicting a race to court as advocates and defense attorneys seek to capitalize on the changes.
One attendee who declined to be identified said an applicant had already threatened legal action after a pre-employment drug screen positive for marijuana resulted in a driving job offer being rescinded.
Spadea said he suspects any serious lawsuit threat would require someone with a much stronger case than that one, but that it illustrates why companies need to do everything they can to prevent such lawsuits.
“If we’re talking a test case, appealing it to the Supreme Court, we're talking four or five years, maybe, tens of thousands of dollars in litigation,” he said. “Even if you’re in the right.”
Don’t focus on marijuana
Assuming SB 3 passes, patients will still have a wait. The bill gives regulators 18 months to set up a framework for regulating the network of medical marijuana growers, processors and dispensers.
Dr. James Rochester of WorkNet Occupational Medicine in Lancaster said employers should already have policies and procedures in place to address drug and alcohol use.
“Don't think that the fact that it’s marijuana makes it special,” he said. “In terms of human resources and safety and those issues, it’s not really any different.”
Spadea agreed, saying employers will be on the safest ground when they can make a compelling case for firing or not hiring someone without mentioning marijuana.
That involves clearly stating job requirements and disciplinary procedures, and documenting transgressions.
“Then you’re taking marijuana out of it,” he said. “You can say, we noticed that your quality of work has suffered, you didn’t follow the safety procedures you were required to.”
However, they said, part of Pennsylvania’s law could be construed as giving medical marijuana users special protection, and given the threat of litigation, companies should alert their legal advisers any time a situation that may involve it arises.
Know the laws
It will be about a year and a half until the system's up and running.
All marijuana use is still illegal under federal law, which takes precedence over state and local laws.
The Obama administration has in essence allowed marijuana use by choosing not to go after states that have legalized it for medical or recreational use, Spadea said, but that could change under president-elect Donald Trump.
Meanwhile, he said, “If you are working with a federal contract, have long-haul drivers with Department of Transportation regulations, anything along those lines, comply with federal law and remember that marijuana remains an illegal substance.”
Pennsylvania’s law includes several prohibitions for those “under the influence of medical marijuana,” including working “at heights or in confined spaces” or engaging in anything that would constitute negligence, malpractice or professional misconduct.
It also says those under the influence may be prohibited from any task employers deems life-threatening or a potential public health or safety risk.
Beware gray areas
Both medically and legally, Spadea and Rochester said, exactly what constitutes being “under the influence of medical marijuana” remains unclear.
One key factor is that, unlike alcohol, marijuana can remain in the body long after a person uses it.
Because of that, they don’t expect standard hair, saliva or urine drug screening approaches to be useful in determining whether someone was under the influence of medical marijuana.