This past February, the first medical marijuana dispensaries opened in Pennsylvania. Over 13,000 patients already have been certified for medical marijuana treatment. Pennsylvania patients who have a prescription for medical marijuana may receive the treatment in the form of pills, vape pens, oil and tinctures. Marijuana remains illegal in the dry leaf, flower, or edible forms in the state.
Patients diagnosed with one of the 17 currently approved serious medical conditions can receive a prescription for medical marijuana as a treatment for their condition. The approved medical conditions include cancer, glaucoma, epilepsy, Huntingdon’s Disease, and Parkinson’s disease.
Doctors also can prescribe medical marijuana to treat the chronic pain associated with certain medical disorders such as fibromyalgia. For many patients, medical marijuana is a preferred treatment over other medications, which can have serious side effects such as seizures or an increase in suicidal tendencies.
Employment drug testing may occur as part of a pre-employment physical, randomly, or when there is a suspicion of drug use. Many companies adhere to a strict policy, where a positive test for marijuana, regardless of whether the individual has a valid medical marijuana prescription, would constitute a “failed” test. This could result in employee discipline, including suspension, loss of pay, and even dismissal from the job.
When a patient feels that medical marijuana is their only viable treatment for their medical condition, this could put the individual in a position where they feel that they must choose between their employment and health.
While an employer cannot fire an employee for simply being a certified medical marijuana patient, employers do have the right to enforce a drug-free workplace. This is particularly true in the case of federal contractors.
Marijuana impairment is usually proven by the results of a blood test that is administered within one or two hours of ingestion. Urine testing will only screen for the presence of tetrahydrocannabinol (THC) metabolites, which does not give accurate information about true impairment. Patients medicating with medical marijuana each day will have high levels of THC metabolites, even if they are not using the medical marijuana on the job site.
Most major drug testing agencies such as Quest Diagnostics do not have a process in place that could verify a medical marijuana recommendation during the administration of a workforce drug test.
In some companies, a medical review officer will conduct an investigation, including an interview with the employee, when a positive drug test result is found. At that time, the employee can provide an alternative medical explanation for the positive test results.
While this system has been effective with respect to the use of certain prescription medication, it does not appear to work the same in the case of certified medical marijuana. It is more difficult for a physician to properly determine if the employee is actually using the medical marijuana consistent with their medical prescription.
Until Pennsylvania employment laws begin to reflect the new reality of medical marijuana use, there are no clear answers as to an employee’s rights with respect to drug testing. Patient advocacy groups such as Pennsylvania Compassionate Caregivers point out that this issue will continue to arise, as most individuals using medical marijuana for treatment are employed. Medical marijuana generally is not covered by medical insurance and therefore must be paid out of pocket – which usually means the patient has a steady source of income.
If you are an employer who needs additional information about the consequences of drug testing employees, an experienced employment attorney at MacMain, Connell & Leinhauser is here to help. Contact us at 484-318-7106 or submit an online inquiry form.