By Brian J. Skinner, Esq.
The West Virginia Medical Cannabis Act was signed into law by Governor Jim Justice on April 19, 2017. The Act allows individuals with a “serious medical condition” to receive a certification to use medical cannabis obtained from a permitted dispensary in the state. Currently, 15 medical conditions are covered by the Act. Because of concerns of the banking industry related to the handling funds derived from the sale of medical cannabis, the program is not yet operational. However, those issues have now been addressed by amendments to the Act and the program is expected to be fully operational by the summer of 2021.
Once operational, employers will need to be familiar with the Act and prepared to properly manage employees certified to use medical cannabis. This is because the Act provides protections for employees certified to use medical cannabis. First and foremost, it prohibits employers from discriminating or taking an adverse action against an employee “solely on the basis of the employee’s status as an individual who is certified to use medical cannabis.” But employers are not required to accommodate an employee’s possession or use of medical cannabis on its premises. Thus, employers may discipline an employee found to be under the influence of medical cannabis in the workplace and may prohibit employees from completing tasks that the employer deems life-threatening or which pose a public health or safety risk while the employee is under the influence.
Because of the newness of the Act there are many questions about how the Act intersects with other laws and existing employment policies. For example, under federal law, marijuana or cannabis is a Schedule I controlled substance and its sale and use is illegal. The difference between how federal and state law treats marijuana creates a challenge for businesses that must comply with state and federal laws and for employers who are subject to federally mandated, drug-free workplace programs. Furthermore, the Act creates potential conflicts with requirements under other employment laws, including the Americans with Disabilities Act, the West Virginia Human Rights Act, and in particular, the duty to accommodate persons with disabilities.
Thirty-four other states have approved the use of marijuana for medical purposes and are similarly grappling with balancing workplace safety and policies against compliance with state medical cannabis laws. In July 2017, the Massachusetts Supreme Judicial Court held that employers in the state have a duty to accommodate the use of prescribed medication, including medical marijuana, for the treatment of a serious health condition. In August 2018, a federal district court in New Jersey held that New Jersey employers are not required to waive mandatory drug testing for any employee who is a medical marijuana patient under the New Jersey Compassionate Use Medical Marijuana Act. In February 2018, a federal district court in Arizona ruled that Walmart disregarded the anti-discrimination protections of the Arizona Medical Marijuana Act when it fired an employee who had been prescribed medical marijuana but was not proven to be impaired while on the job. And, in March 2019, the Superior Court of New Jersey, Appellate Division held that the provision in the state’s Compassionate Use Act that does not require an employment accommodation for a medical marijuana user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere, such as the New Jersey Law Against Discrimination. In a case that is especially relevant to West Virginia employers since the West Virginia Medical Cannabis Act is almost a carbon copy of the Pennsylvania Medical Marijuana Act, a Pennsylvania state court held that the state’s Medical Marijuana Act creates a private right of action for medical marijuana users to sue their employers.
Thus, employers should review their handbook policies, specifically anti-discrimination and drug testing policies, to ensure they are complying with the West Virginia Medical Cannabis Act. It will be important for employers to develop a plan to ensure compliance with both federal and state law and to maintain a safe workplace. Finally, in light of the recent Pennsylvania court decision and the potential for a West Virginia court to rule similarly, employers should consider carefully all adverse employment decisions involving medical cannabis users.
Brian J. Skinner is the former General Counsel to the West Virginia Bureau for Public Health. He assisted the bureau in establishing the Office of Medical Cannabis upon enactment of the West Virginia Medical Cannabis Act by drafting procedures and legislative rules.
This article contains general legal information and does not contain legal advice. H2C Public Policy Strategists, LLC is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.