This week, Governor Wolf signed House Bill 1024, allowing certain revisions to the Pennsylvania Medical Marijuana Act (the “Act”). While the revisions do not specifically implicate the workplace, and do not provide guidance to employers on navigating medical marijuana use by employees, employers should, nonetheless, pay attention.
House Bill 1024 makes permanent three revisions to the Act put in place during the pandemic:
- Curbside pick-up from dispensaries;
- Telemedicine visits for certification exams; and
- Dispensing of a 90-day supply.
Additionally, the bill added two new conditions for which patients may obtain certification – cancer remission therapy and neuropathies of the central nervous system.
Why should employers pay attention to these changes?
First, the added conditions – especially, neuropathies of the central nervous system – will expand the number of individuals who can use marijuana. So, if you have not yet dealt with the question of employee use, you soon may.
Permanent allowance of telemedicine visits for certification exams could also expand use. In theory, it should be much easier for patients to find a provider, schedule an appointment and obtain certification to use medical marijuana. However, for employers who require certification from a medical provider that an employee’s use of medical marijuana will not impact workplace safety, it may be harder for an employee to obtain this certification. A doctor who sees a patient virtually, for a few minutes and for a limited discussion as to the employee’s qualification to use medical marijuana, may (understandably) be hesitant to complete a safety certification – particularly when the doctor likely will not set eyes on the patient again for at least a year.
If the certifying provider will not complete a safety certification, what about the dispensing provider? While that is a possibility, dispensing providers also may be less willing to do so when patients are obtaining an increased 90-day supply of marijuana. Under the Act, it is the dispensing provider who speaks with the patient on a regular basis, evaluates the type and form of marijuana a patient may take and discusses side-effects, palliative effects, dosage and frequency of use with the patient. Previously, these discussions occurred monthly, allowing for frequent dialogue and tweaking of use. Now, for patients who can afford to obtain a 90-day supply, less frequent contact between patient and provider could make the provider unwilling to complete a safety certification. And, even if the provider is willing to complete the safety certification, employers may feel less confident in the opinion.
Is there a solution? That remains to be seen. For now, we recommend that employers consult with counsel regarding employee medical marijuana use, especially in safety sensitive positions. Sending certain employees for a fitness for duty evaluation may be an option, under the right circumstances. Certainly, we recommend training managers and supervisors regarding the signs and symptoms of impairment – not just of marijuana, but of alcohol and all drugs. You also should ensure that your drug and alcohol policy provides for reasonable suspicion testing and makes clear that on premises/on-duty use of medical marijuana is prohibited.