Legalization of medical marijuana could put employers, drug testing on defensive

Lehigh Valley Business — Health Care Update 2016

By JENNIFER MARANGOS Special for Lehigh Valley Business

For businesses wondering about how Act 16, the new Pennsylvania law legalizing medical marijuana, affects employee drug testing, the short answer is that it doesn’t – but employers had better stay alert. As with so many things in life, the impact of the law, which was enacted in April, lies on a more complicated plane, according to the experts.

Indeed, Act 16 is something employers should be thinking about, even before the regulations shaping its implementation are established in November by the state Department of Health. The law regulates the sale and use of medical marijuana, and one reason employers who conduct employee drug tests need to pay attention is that the measure potentially creates challenges with respect to the Americans with Disabilities Act. “You don’t want to be in a position in which the employee says, ‘You fired me two days after I told you I have a disabling condition,’ ” said attorney Timothy Gilsbach of King, Spry, Herman, Freund & Faul LLC, Bethlehem. Attorney Deirdre Kamber Todd, a partner with Upper Macungie Township-based The Kamber Law Group PC, also urged caution for employers, at the same time describing the medical marijuana law as “surprisingly” practical. “It recognizes that employers still need to run their workplaces and allows them to take preventative action if an employee is in a position to be of harm to himself or to others,” she said.

In terms of a drug test, it can be done via blood, urine or oral fluid, said Nadine Koenig, manager of the toxicology department with Health Network Laboratories, Hanover Township, Lehigh County. The tests look for the presence of something known as the inactive metabolite, carboxy-THC, the chemical compound created after marijuana is metabolized by the body. Koenig stressed there is no difference between medical marijuana and recreational marijuana, as far as the drug test is concerned. Nor can the test tell when the drug was used, only that the drug has been used, she added. In fact, there is no exact scientific answer as to how long metabolized marijuana can be detected in urine, Koenig said. “There are many variables that determine how long carboxy-THC stays in your system,” she said. “These include your metabolism, weight, body fat and frequency of use, just to name a few." “As a general rule, the inactive metabolite can be detectable in your urine from one to three days and up to several weeks or a month, depending on usage and the variables mentioned.”

Workplace testing requires that all positive screens are confirmed by an alternate method, such as GC/MS (gas chromatography/mass spectrometry) or LC/MS (liquid chromatography/mass spectrometry) tests, according to Koenig. “It is important for employers to have drug-screening policies that address the use of medical marijuana and that these policies are clear to employees,” she said. “Medical review officers should be utilized to help distinguish between medicinal use and illicit use of drugs.” It is also worth noting that the Pennsylvania law only legalizes the sale and use of medical marijuana at the state level. “Marijuana is a prohibited Schedule 1 controlled substance under federal law,” Koenig said. “The only protection, or ‘safe harbor,’ arises under the state law.”

Gilsbach said that with drug testing, it is important for employers to ensure that testing is uniformly applied and that things are being done in a nondiscriminatory manner. If a positive test result comes back, he said, the employer must talk with the employee and see if the worker has anything to say. It is up to the employee to assert his or her protection under the medical marijuana law. If that should occur, Gilsbach cautioned, and an employer learns that a particular employee has a medical condition that had not previously been disclosed, the employer must proceed with care. “Because of the medical condition, that employee is protected under the Americans with Disabilities Act,” Gilsbach said, “and if the employer needs to discipline the employee or even ultimately winds up terminating the employee, he needs to make sure to cross all his T’s and dot all his I’s. … “If you are firing the employee for poor performance, you want to be able to show that that is the reason why you did it,” he said. “In this type of situation, the burden shifts to the employer to show that there was a valid reason for firing the employee.”

Todd is legislative and diversity chair for the Lehigh Valley Chapter of the Society of Human Resource Management. She said that until case law develops, she would think that the concept of “willful misconduct” as it is applied with respect to unemployment compensation might guide conversations related to unacceptable work performance and medical marijuana use. Meanwhile, she said, one thing employers can do to bolster their position when it comes to the medical marijuana law and many other HR matters is to spend time fleshing out job descriptions. “Written job descriptions should exist, and they should clearly delineate what someone should and should not be able to do,” she said. “There should at least be a consideration of nonphysical and nontechnical job requirements. It has to go beyond ‘Must be able to lift 50 pounds and do Excel.’ Things like ‘Are they able to deal with conflict well? Can they multi-task?’ “The job description should indicate that they need to be sharp in order to do their job and be able to help justify when you say a person cannot do his or her job to appropriate standards,” she said.

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