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SALT LAKE CITY — Medical marijuana’s legalization in Utah has brought on a host of questions for those who need it to treat mental and physical health problems. A big one, especially for those employed by businesses receiving federal funding, is how employment drug testing works under the new laws.
Proposition 2 was voted into existence in the 2018 midterm elections, and was quickly replaced by the Utah Medical Cannabis Act at the beginning of December. The legislation revised the rules and precedents established in Proposition 2, and offered a comprehensive analysis of what is and is not allowed for medical marijuana production and use.
The act addresses employment drug testing here:
26-61a-111 Nondiscrimination for medical care or government employment.
(2) (a) Notwithstanding any other provision of law and except as provided in Subsection (2)(b), the state or any political subdivision shall treat an employee’s use of medical cannabis in accordance with this chapter or Section 58-37-3.7 in the same way the state or political subdivision treats employee use of opioids and opiates.
(b) Subsection (2)(a) does not apply where application would jeopardize federal funding for the employee’s position.
This provision applies only to state and local government employees rather than private businesses.
Richard Oborn with the Utah Department of Health said, “The Medical Cannabis Act doesn’t address drug testing at a private business. The act does require that state and local governments treat an individual’s use of marijuana as they would opiates.”
In other words, if they are perceived to be under the influence at work, they could be disciplined if that’s what the business chooses to do.
“If medical marijuana didn’t impact their performance, they shouldn’t have to fear losing their job,” Oborn added, “but the use of medical marijuana is still illegal under federal law.”
That means, for businesses under government control, (anything from government offices to some hospitals, universities, and nursing homes), employees are protected under the Medical Cannabis Act unless in a special circumstance the Federal Government withdraws funding from a position. This has not yet been a problem anywhere where medical marijuana is legal, but if they decided to withdraw funding for a position due to an employee's positive drug test, then that individual wouldn't be protected by the Medical Cannabis Act. A business could also terminate an employee if it feared federal funding may be withdrawn for that position.
“Protection does not apply when it jeopardizes federal funding for the employee’s position,” Oborn said. In that case, the institution can discipline or terminate employees as needed.
Gov. Herbert signs medical marijuana compromise into law
Gov. Gary Herbert has signed into law a medical marijuana bill to replace the ballot initiative that voters approved on Nov. 6.Private businesses are not addressed under the Medical Cannabis Act, and thus deciding whether to test employees for the substance abuse prior to or during employment, and what to do when that test turns up positive for someone who has been prescribed medical cannabis, is up to the business.
Ryan Nelson, Utah President of the Employer's Council pointed to Colorado, where the code treats medical marijuana like alcohol in private businesses. "It's a legal substance, but if your employee shows up under the influence or in possession of it, the law doesn't restrict (an employer's) ability to manage the workplace."
In other words, if an individual is clearly under the influence at work, and it’s impacting their workplace performance, then action may be taken as deemed appropriate.
Utah residents have had a range of reactions to the Medical Cannabis Act. Supporters of Proposition 2 have tended to think the legislation hasn’t done nearly enough. Salt Lake City resident Eric Nelson said, “If a patient is working with their doctor and using medical marijuana as prescribed, I feel an employee should not be at risk of being let go for marijuana use. As prescribed is the key.”
Meanwhile others are happy to see restrictions maintained on the federally illegal drug. Overall, the consensus seems to be that the legislation will need to be given greater clarity by the Utah government in coming months.
"There is a communication and branding issue that employers will have to deal with," Nelson said in a recent article. "What I think would be extremely helpful is clarity in the bill that specifically addresses what an employer's rights are under this law in terms of managing drugs (or intoxication) in the workplace."
