On April 19, 2017, The West Virginia Medical Cannabis Act (“Act”) became law. In addition to permitting patients to use marijuana for medicinal use, the Act contains anti-discrimination and retaliation provision as well as other provisions that impact West Virginia employers.
Effective: Most provisions of the Act took effect immediately upon passage; however, identification cards will not be issued to patients until July 1, 2019.
Action Required: You should remain informed of your obligations and responsibilities under the Act and federal regulations. If you have any questions, please contact your Human Resources Business Partner, or, if you participate in our ADP TotalSource Drug Free Workplace Program, our Drug Free Workplace Administrator for additional guidance.
West Virginia Governor Jim Justice recently signed legislation that legalizes the use of marijuana for medicinal purposes. The new law permits patients suffering from serious medical conditions including cancer, ALS, HIV/AIDS, multiple sclerosis, Parkinson’s disease, epilepsy, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, sickle cell anemia, severe chronic or intractable pain, or certain spinal cord damage to use medicinal marijuana. The medicinal marijuana provided to these patients will only be dispensed in pill, oil, topical forms (including gel, creams or ointments), vaporization or nebulization, tincture, liquid or dermal patch. Smoking marijuana is not permitted under the law.
Employment Protections
The Act contains several provisions that impact you, as an employer. First, there is a broad anti-discrimination provision, which provides that “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.”
Despite the antidiscrimination protections contained in the law, the law is clear that employers need not accommodate the use of marijuana at work, and may discipline employees who are “under the influence” of marijuana in the workplace or whose conduct falls below the standard of care normally accepted for their position.
Additionally, nothing in the Act requires an employer to commit an act that would put the employer or any person acting on the employer’s behalf in violation of federal law. Employees are also prohibited from undertaking any task while under the influence of medical cannabis when doing so would constitute negligence, professional malpractice or professional misconduct. Civil, criminal or other penalties may be imposed if they do.
Safety-Sensitive Positions
The Act permits an employer to implement restrictions consistent with the following prohibitions:
(1) A patient may not operate or be in physical control of any of the following while under the influence of marijuana with a blood content of more than 3 ng/ml: (a) chemicals which require a permit issued by the federal government, state government, federal agency or state agency; (b) high-voltage electricity or any other public utility;or (c) vehicle, aircraft, train, boat or heavy machinery.
(2) A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical cannabis.
(3) A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
(4) A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical cannabis. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
Practical Considerations
Although the Act does not allow you to refuse to hire medicinal marijuana users, it allows you to prohibit workers who are under the influence from performing tasks or duties that are safety sensitive. What is considered to be “under the influence;” however, remains unanswered. The good news is West Virginia is not expected to begin issuing medical marijuana cards or dispensing medical marijuana until July 1, 2019. Thus, the employment-related provisions of the law will not impact employers until then.
Administration of a drug testing program is complicated by the passage of this new law. Please contact your Human Resources Business Partner with any questions you may have. If you participate in the ADP TotalSource Drug Free Workplace Program, you should contact our ADP TotalSource Drug Free Workplace Administrator for additional guidance.