Many employers in Alabama have experience with testing for employee use of marijuana. Yet there is now a new wrinkle to address: What about medical marijuana?
Fortunately for employers, Alabama’s new medical marijuana law is accommodating to employers and leaves employers with mostly the same discretion as to their treatment of marijuana use—including medical use—as they had before the law.
Alabama Governor Kay Ivey signed the Darren Wesley “Ato” Hall Compassion Act into law on May 17, 2021. This Act creates a narrowly tailored system allowing for and regulating the use of cannabis to treat specified medical conditions. Although it became effective immediately when signed, medical cannabis may not become available for patients in Alabama until September 1, 2022, which is the deadline for the newly created Alabama Medical Cannabis Commission to create a system that allows people to apply for licenses to produce, transport and sell cannabis for medical use.
This delay gives employers ample opportunity to understand the Act and revise their employment policies as needed.
What specifically does the Compassion Act do?
The Compassion Act legalizes medical cannabis in limited forms such as tablets, oils, or lozenges to treat a long but closed list of medical conditions (there is no catch-all here). These conditions include:
- Cancer pain and related nausea
- Crohn’s disease
- Parkinson’s disease
- Post-traumatic stress disorder
- Chronic pain which has not responded to traditional treatment
For a patient to be authorized for cannabis use, the patient must have a “physician certification” from a medical doctor who is a “registered certifying physician” authorized by the Alabama State Board of Medical Examiners to certify patients for use of medical cannabis. The Board of Medical Examiners will be issuing rules soon for the issuance of certifications to patients. The patient must then be listed in the state’s controlled-substance database.
The physician certification (which “does not constitute a prescription for medical cannabis,” though it seems to function like a prescription) may be valid for up to 12 months. The patient may possess no more than 70 doses at a time. If a person is found in possession of too many doses, or any cannabis without a prescription, he or she could be charged with a Class B felony. The Act prohibits recreational marijuana use and prohibits smoking or vaping marijuana.
What does this new legal framework and its regulations this mean for employers?
The Compassion Act is favorable to employers.
- An employer may continue to have the same drug policies it had before the law with no consequences.
- Employers are not required to accommodate the use of medical cannabis or to modify the job requirements of any employee who uses medical cannabis.
- Employers are not prohibited from refusing to hire, discipline, or terminate any employee as a result of that employee’s use of medical cannabis.
- Employers are allowed to establish and enforce a drug-testing policy that prohibits the use of marijuana or cannabis, including medical cannabis.
- An employer may adopt a policy requiring an employee to notify it if the employee possesses a medical cannabis card.
How does the law address employee relations?
The Compassion Act does not interfere with any federal restrictions on employment. It also does not grant an employee the right to pursue legal action against an employer for an adverse action related to the use of medical cannabis. Additionally, employers do not have to provide health insurance to reimburse an individual for costs associated with the use of medical cannabis.
As for workers’ compensation, the Compassion Act will not influence the discount available to employers who have a certified drug-free workplace policy. The Act will also not affect an employer’s ability to assert the statutory conclusive presumption of impairment in a denial of workers’ compensation benefits to an employee who tested positive for marijuana or refused to take a drug test after an on-the-job accident.
If an employee is discharged from employment for a positive drug test from the use of medical cannabis and the employer had a policy warning the employee that a positive drug test could result in a dismissal, the employee will be considered to have been discharged for misconduct and ineligible for unemployment benefits.
All told, the new law makes it clear that it is up to the employer, and not the state, to determine whether and how it will monitor, allow, or punish the use of medical cannabis by its workers. An employer may keep the same policies it currently has about marijuana use and apply it to medical marijuana.
An employer also may exempt medical marijuana from its drug policy unless it is subject to federal requirements, such as with truck drivers, enforced by the Department of Transportation.
What does my business need to do to prepare?
While these provisions of the Compassion Act may, on the surface, suggest that little change is necessary in policies and procedures, in a tight labor market, it may be beneficial to employers to accommodate employees who may benefit from the use of medical cannabis. Even if an employer intends to prohibit all marijuana use, including medical marijuana, it would be best to make that clear in the employer’s policies and communicate it to employees. Otherwise, a good employee may erroneously assume that medical cannabis is exempt from the employer’s prohibition of marijuana use. That employee can then make an informed decision about whether to choose using medical cannabis for treatment or risk losing his or her employment.
And though the authorized use of medical cannabis in Alabama is months off, before use begins, employers should also:
- Make an informed decision about how they want to address use of medical cannabis by their employees
- Analyze how comfortable they are accommodating employees who could legally use the drug
- Make appropriate changes to their handbooks or drug policies
- Effectively communicate to employees how medical cannabis will be treated under the employer’s policies.
Some employers may need to consider separate policies for safety-sensitive employees (like heavy equipment operators) and non-safety-sensitive employees (like office workers).
One final note: Despite its name, Alabama’s Compassion Act does not require an employer to be compassionate and accommodate an employee with a disability whose doctor recommends use of medical cannabis. Also be mindful that federal law also does not currently require an employer to accommodate use of the drug because it is still illegal under federal law. But with many states now permitting medical use of marijuana and some states even permitting recreational use, some are questioning the reasoning for the existing federal prohibition (including U.S. Supreme Court Justice Clarence Thomas), and there are efforts in Congress and the courts to remove the federal prohibition.
Given the trend toward more permissiveness for marijuana use, it would not be surprising for there to soon be a requirement under federal law to accommodate use of medical cannabis. For now, if you like your zero-tolerance policy, then you can keep your zero-tolerance policy.
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