West Virginia’s Medical Cannabis Act: What Employers Should Know – The Basics

West Virginia’s Medical Cannabis Act: What Employers Should Know – The Basics

By Brian J. Skinner, Esq.

The West Virginia Medical Cannabis Act was signed into law by Governor Jim Justice on April 19, 2017. However, the law has not yet been implemented and medical cannabis is not expected to be available in dispensaries until the summer of 2021. Once patients are able to access medical cannabis, employers may soon experience the challenges this law presents particularly in regard to employment practices. Thus, it is important for employers to have a basic understanding of the Act and how it will impact the workplace.

West Virginia recognizes 15 medical conditions that medical cannabis can be used to treat.  Those conditions include cancer, HIV/AIDS, Amyotrophic lateral sclerosis, Parkinson’s disease., Multiple sclerosis, Epilepsy, Neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, Sickle cell anemia, and severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain.

Medical cannabis may be taken in the following forms: pill; oil; topical gel, cream, or ointment; vaporization or nebulization, dry leaf or a plant form of cannabis; tincture; or liquid.  It can be incorporated into edible form by a patient or caregiver to aid ingestion by the patient, but it is unlawful to smoke medical cannabis.

Medical cannabis contains the chemical compounds CBD (cannabidiol) and THC (tetrahydrocanniabinol). CBD is known for analgesic, anti-inflammatory and anti-anxiety properties unlike the psychoactive effects such as a “high” feeling that THC provides.  Medical cannabis is subject to extensive testing and the exact chemical compounds will be disclosed to the patient by product labeling. Unlike a recreational marijuana user, those using medical cannabis are certified by a physician as having one of the 15 recognized serious medical conditions and upon certification, are issued a medical cannabis identification card by the West Virginia Office of Medical Cannabis authorizing them to purchase medical cannabis from a state permitted dispensary.

A patient must be a state resident and who has a treating relationship with a physician who is registered with the Office of Medical Cannabis.  The physician must provide a signed certification to the patient, verifying a serious medical condition.  The patient then must apply for an identification card, (valid for one year maximum) and issued by the Office of Medical Cannabis.  Identification cards must be presented at an authorized dispensary in order to purchase medical cannabis.  Children under 18 must have an adult caregiver who must obtain a caregiver ID.  While caregivers will have an ID card, they are not authorized to personally use medical cannabis.  Additional information on the program and the Office of Medical Cannabis can be found at https://dhhr.wv.gov/bph/Pages/Medical-Cannabis-Program.aspx.

Despite West Virginia and 33 other states enacting legislation to authorize use of medical cannabis, it is still classified as a Schedule I controlled substance under federal law, meaning that it is considered to have no medical benefits. Federal law preempts the Medical Cannabis Act for those employers subject to federally mandated, drug-free workplace programs, including CDL drivers and federal contractors. These employers can prohibit and not accommodate medical cannabis use in the workplace.  They must also report all drug tests that are positive for marijuana.  The implication is that employers required to comply with federal laws may be able to terminate employees for medical cannabis use as part of that compliance.

It is important to note that current testing methods can’t distinguish medical cannabis use from recreational use.  Also, timing is an issue.  The tests aren’t useful in determining when the use occurred (for example, weeks ago or more recently “under the influence” while on the job).

Employers do have certain rights under the Act.   For those with safety sensitive jobs and/or environments, employers may prohibit employees under the influence of medical cannabis from the following:

• Operating or being in physical control of government-controlled chemicals or high-voltage electricity or any other public utility.
• Performing duties at heights or in confined spaces.
• Performing any task which the employer deems life-threatening to either the employee or his / her coworkers.
• Performing any duty which could result in a public health or safety risk.

Furthermore, under the Act, employers do not need to allow patients to use medical cannabis on their property or premises.  Also, employers can discipline an employee “for being under the influence of medical cannabis or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.”

Despite these provisions, employers are advised to proceed with caution.  The law does protect patients and caregivers and states that “no 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.”  Furthermore, the underlying “serious medical condition” for medical cannabis patients may constitute a disability under the Americans with Disability Act or job protected leave under the Family Medical Leave Act.

Employers should review existing policies and modify certain ones including anti-discrimination to account for medical cannabis status, substance abuse to address medical cannabis use, and drug testing to eliminate blanket, zero tolerance thresholds.  It is also a good idea to discuss with the drug testing vendor how positive marijuana tests will be handled including how the Medical Review Officer (MRO) will discuss with the employee whether or not he/she has a valid state issued medical cannabis identification card. Employers should also educate and train managers regarding the Act.  Consider establishing a procedure for how your company will respond to suspected impairment including documenting observable signs and removing bias. Document an employee’s performance or conduct as it relates to normal standards for the position.

Accurate job descriptions will be helpful in determining those job-specific behaviors and normal standards of performance.  They will also be important under the ADA in exploring whether a job accommodation may be appropriate for an employee who presents a valid medical cannabis identification card. In short, employers must recognize the potential risks that the Act presents to their workplace and should consider seeking legal counsel to discuss the impact the Act given your particular workplace.

Brian J. Skinner is the former General Counsel to the West Virginia Bureau for Public Health and assisted in establishing the Office of Medical Cannabis upon enactment of the West Virginia Medical Cannabis Act including 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.