Practices need to draft policies for physician marijuana use

Jul 05, 2019

Physician practices in states with legalized medical marijuana or recreational marijuana need to consider how to draft policies detailing physician usage.

Although still illegal under federal law, more states continue to decriminalize cannabis use across the country. As a result, employers are struggling with how to handle cannabis use by employees. This is particularly true in the healthcare industry, where physicians’ performance may be compromised - and patients’ lives put at risk - by the use of cannabis. 

Currently, many physician practices completely prohibit the use of all drugs for physicians. Most of my practice clients require drug tests on new hires and conduct random testing thereafter. Whether this is permitted can be dictated by state laws, which should always be checked. However, because the use of cannabis is now legally permitted on physicians’ own time in many states, physician practices are struggling with whether they should modify existing policies that prohibit the use of any drugs and how to handle cannabis used on physicians’ own time.

Hospitals are also facing a similar dilemma as physicians may test positive for cannabis use, whether medical or recreational, or fail random tests thereafter. Although the typical hospital protocol is to refer physicians who test positive to state physician health programs, the result of such an act can cause physicians to lose their job, face mandatory rehabilitation and potentially impact their medical license.

Unfortunately, there are no national guidelines yet on how cannabis use is best addressed by medical practices or hospitals and whether such use should differ from other types of drug use. Physician practices and hospitals therefore need to be very careful about cannabis use, even if such use is legally permitted in their state.

When my practice clients ask me how to handle physicians use of cannabis, here is what I advise them to consider:

Check the legality

Every state has its own laws regarding the use of cannabis. Physician practices should find out what laws apply in their state and be aware of any changes that may be occurring in the near future.

Review employer protections

In states that do allow the use of cannabis, the laws often specifically address protections for employers. The Illinois Cannabis Act is a good example of this. The Illinois law makes it clear that employers are not required to permit employees to be under the influence of or to use cannabis in the workplace under the Cannabis Act. This would also apply to physicians who are not in the workplace but are on call.

Like Illinois, many other states permit employers to take disciplinary action or terminate employees who violate employment or workplace drug policies. This means that employers do not need to change their view on drug use in the workplace simply because cannabis might be legal. Moreover, most states still allow employers to maintain policies on drug testing, consumption of drugs and even storage or use of marijuana in the workplace, as long as the policies are applied in a nondiscriminatory manner.

It is important to remember that unlike other drugs, employees may legally use cannabis on their own time and still test positive for cannabis in the workplace. The use of the drug outside the workplace can mean that employees fail their employer’s drug test.

Document impairment

Employers are also allowed under most state cannabis laws to discipline or terminate employees who reasonably appear to be impaired or under the influence of cannabis. The employer must typically have a good faith belief that the employee is impaired before taking action, so understanding and documenting the signs of impairment at work can be important. Training staff to recognize the signs of impairment is also key. Employers need to understand that terminating an employee for cannabis use without a reasonable belief (or any other actual evidence), can open the employer to liability.

Review policies and reasonable accommodations

Employers should make sure they are familiar with any requirements to provide reasonable accommodations to employees under state laws. For example, if practices have employees who have a legal right use to medical marijuana, how does this impact their policies?

Although many state laws do not require employers to make an accommodation for the use of medical marijuana, some states do allow patients diagnosed with specific medical conditions to possess and use medical marijuana. This is something employers must address in their policies with the guidance of legal counsel.

Of course, every practice must assess whether an accommodation can be made for medical use of cannabis (even outside work hours) if such use could impact job safety or performance. 

It is essential for every employer to review changes in state law regarding the use of cannabis and whether such changes require the creation or modification of policies on cannabis use in the practice. Hopefully, more formal guidelines will become available regarding the use of cannabis by physicians and healthcare workers at either the state or federal level to assist in this process. Until then, seek advice of legal counsel in addressing your state laws and put together policies that will best protect the practice.

Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute and HIPAA. Ericka has been writing for Physicians Practice since 2011.

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