Practice Management Alert

The relative leniency of some state laws clashes with federal regulations, and healthcare facilities may be a prime intersection.

With 30 states currently allowing some form of marijuana for medical usage and nine states (and Washington, D.C.) allowing recreational marijuana, there’s a good chance that your practice or staff will encounter a situation involving marijuana.

Different states’ legislation on medical and recreational marijuana provide the framework on how employers should write and adjust their policies regarding the substance, with the understanding that federal policy still classifies marijuana as a Schedule 1 Controlled Substance.

“Now that cannabis products have burst onto the scene, hospitals and other residential healthcare facilities are struggling with what to do when patients present medical marijuana cards and attempt to use marijuana in the facilities. Indeed, it is high time for the healthcare providers to update their policies and procedures to address these growing concerns,” says Richard L. Holzworth, litigation associate at Fox Rothschild LLP in its Pittsburgh, Pennsylvania, office, in a blog post.

Leave Out Politics

Your clinicians, administrators, or other staff may have strong opinions on marijuana accessibility and legality, but you cannot let personal opinions, emotions, or politics shape your practice’s policies and protocols for marijuana usage.

“Regardless of a healthcare facility’s philosophy, either from a political or medicinal perspective, on medical marijuana, it is important for each institution to develop and implement a comprehensive set of policies and procedures to address the inevitable circumstance of a patient presenting with a medical marijuana ID card or cannabis products in hand,” Holzworth says.

The state in which you practice — and its position on marijuana — obviously affects how much attention you need to pay to the substance when crafting your practice’s policy. Here are more “localized” considerations medical facilities and practices should take into account, according to Holzworth:

• “Does the facility specialize in treating one or more of the 17 “serious medical conditions” that qualify a patient for medical marijuana use?
• “Does the institution receive federal funding that could be impacted by permitting the use of medical marijuana?
• “What is the facility’s existing human resources policy on a drug-free workplace, and does this policy address use of medical marijuana by employees?
• “What is the facility’s controlled substance diversion prevention protocol?”

If your practice’s policies currently don’t address any of the aforementioned factors, spend some time brainstorming and running risk analyses before you set your marijuana policies in stone.

Pay Extra Attention to Employees

You need to look to your state’s legislation for specifics, but Pennsylvania’s Medical Marijuana Act appears to take a fair, common-sense approach to a potentially sticky subject.

“Under the Pennsylvania Medical Marijuana Act, it is unlawful for an employer to “discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee […] solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” § 10231.2103(b)(1),” Holzworth says.

Pennsylvania legislators give a nod to the generally accepted notion that active marijuana usage affects performance and can contribute to less-than-peak work if used while on the clock.

“However, nothing [in] the law prevents an employer from disciplining an employee who is under the influence of marijuana (regardless of the source of the marijuana) or for working while under the influence of marijuana when the employee’s conduct falls below the standard normally accepted for that position. § 10231.2103(b)(2). In other words, employers cannot take an ‘adverse employment action’ simply because an employee has been certified by a physician to use marijuana products, but employers are not obligated to tolerate use of marijuana or substandard performance because of marijuana. Moreover, employers are not required to accommodate the use of marijuana products in the workplace,” Holzworth says.

Bottom line: For healthcare practitioners and facilities, following federal law is probably safest when establishing marijuana policies that affect employees. Providing healthcare services to others is already a demanding and delicate endeavor.

Resource: To find out whether your state has rules and regulations concerning medical or recreational marijuana, you can visit a continually updated list here: https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.