Private Duty

Navigate high-stakes challenges of employee medical, recreational marijuana use

Ensure your agency has a drug use policy in place and enforces it consistently to help protect against the many legal challenges presented by the growing legalization of marijuana.

Thirty-three states, Washington D.C., Guam and Puerto Rico have approved public medical marijuana programs. In 10 states, recreational use also is legal.

Specifics of these laws vary by state and present a new and dizzying set of questions for private duty and Medicare-certified home health agencies alike.

And marijuana in particular can be challenging because it stays in the system for longer periods than some other drugs and standard testing currently doesn’t indicate intoxication levels. This means agencies won’t know for sure if a caregiver was impaired by marijuana while on duty or not.

“It’s a huge quagmire,” says attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman, P.C.

This is particularly true in private duty, which faces an increasing struggle to find enough quality caregivers. Agencies in or near states where marijuana use — either medical or recreational — is legal may have a more difficult time finding caregivers who will pass a pre-employment drug test, Markette notes.

When it comes to marijuana use, there are safety and liability concerns both for clients and the caregivers themselves. Caregivers typically drive from visit to visit during the workday and are responsible for client care, both activities that could potentially be impaired by the use of marijuana.

“Certainly, if they are driving, I think you have to maintain zero tolerance for those workers,” says Miranda Watkins, an attorney at Fisher Phillips LLP in San Diego.

And when it comes to job duties that have a direct impact on a clients or patients — such as lifting or administering medications — a strict drug policy is likely appropriate, Watkins says. “I’d rather err on the side of protecting the patients than not,” Markette says.

Marijuana is illegal at the federal level

It’s important for agency leaders to remember that even if some form of marijuana use is legal in their state, marijuana still is illegal at the federal level.

“This means that under federal law, employer drug testing programs can rest on the premise that marijuana use is unlawful, and [employers] may insist on a drug-free workplace,” Watkins says.

Agencies should establish a set policy and apply policies and programs consistently.

If your agency decides to maintain a pre-employment drug screening policy, for instance, then either all applicants or all applicants for safety-sensitive positions should be tested.

“Where you could get into trouble is if you don’t have uniformly applied policy and instead you’re just sort of picking and choosing which applicants you want to drug test,” Watkins says.

If the policy is inconsistent, it could leave the door open for allegations of discrimination and retaliation, she explains.

Similarly, not having a policy at all can get agencies into trouble, Markette says. Without a policy it could be difficult to defend an agency’s approach to drug testing, and it would be easy to allege discriminatory practices.

Consider additional tips for compliance

Establish a policy. Policies should outline when agencies will require drug tests, what will be tested, how tests will be conducted and the consequences in the case of a positive result.

  • Answer the questions: Does your agency take a zero tolerance approach to drug use? Will testing be done randomly or only when there is reasonable cause? How much time does an employee have to complete the drug testing (24 hours, more or less)? If there is a positive result, will there be a follow-up test? Is a single positive test grounds for dismissal? Will the testing be done through a specific lab or company? If through a lab, which one?
  • Markette recommends outlining in the policy which drugs will be included in the screening. There are often standard employer panels that can be used, but the substances being screened for may vary by region.

Conduct training on your policy. Publicize your policy and train supervisors and managers, especially if your agency is considering transitioning from a zero-tolerance policy. Make sure everyone on your staff knows what the policy is and follows that policy.

Document a reason for testing. Many agencies are moving toward a reasonable cause approach in drug testing, Markette says. This means agencies will require drug tests for employees when there is reasonable cause or reasonable suspicion.

  • If using this kind of policy, document anything you’re relying on as reasonable suspicion, Watkins says. This documentation will help support the decision to test.

Track changes in state and federal law. Laws around marijuana use are changing rapidly, and some states have unique provisions in place. For example, some states include statutes that prohibit discrimination against medical marijuana users, Markette notes.

While marijuana is still considered illegal under federal law, if that ever changes, it would also impact what agencies can and cannot do when it comes to drug policies. — Kirsten Dize (