Lancaster Physician Fall 2019 - 21

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This law made it legal to possess and consume
medical marijuana. The law identified who
could possess it-someone who receives the
proper certification from a licensed practitioner
and is in possession of an ID card issued by
the PA Dept. of Health, and also a caregiver
who possesses a similar valid ID card issued
by the PA DoH.

The law does not allow
for recreational use in
Pennsylvania.
The law restricts the forms that medical
marijuana can take-pill, oil, topical forms,
liquid and other forms medically approved
(vaporization & nebulization).
This article is not a primer on the law.
Rather, it is to identify the numerous and
important human resource issues now facing every employer in the Commonwealth
and to identify a few effective practices for
HR's consideration.
HR, as a significant business partner and
internal consultant, must now find their way
through the labyrinth of federal and state
laws, regulations, and court decisions as they
contribute to the management of one of the
largest organization's expenses and source of
productivity. Regardless of who has responsibility for the HR functions-employment, safety,
rewards, training, performance management
programs, and compliance-in an organization,
there is a natural tension at the nexus of internal
operations, rules, and policies with the external
environment of laws and regulations. This nexus
space is a minefield, yet it must be traversed.
HR is used to facing ill-defined situations
with a high consequence of error. The world of
employee relations and engagement demands
attention, with one eye on the immediate
and one on the possible future events and
decisions. Complicating this situation is the
reality of federal law prohibiting the possession
and use of marijuana in any form with the
state law legalizing it for medical purposes.
With so few court cases yet as guides and
existing organization policies and procedures
focused on pre-employment drug screening,
substance abuse, impairment, and for-cause
testing, there are now real gaps in the HR

administrative-policy-application-enforcement-compliance arena.
The impact to the employer has many
aspects. HR should lead the efforts to address
employment applicant screening, recruiting
communications, selection procedures, workflow design, job descriptions (with well-defined
essential functions and legislated or other
safety-relevant duties), disability discrimination
concerns, the need for reasonable accommodations, employee discipline issues, substance
abuse policies, Employee Assistance Programs,
employee handbooks, and of course staff,
supervisor and manager training. Further, a
fundamental principle of policy administration
is consistency. The new narrative in the medical
marijuana world is to take each situation on a
case-by-case arrangement.
The HR sphere of responsibility is made even
more uncertain in the area of impairment. Even
if medical marijuana use is identified in a testing
process, how does that square with the concern
over impairment? Many substance abuse policies include specific behaviors that managers
are trained to identify and thus have cause
to intervene. That intervention can include
a referral to an EAP, a professional caregiver,
or some other action such as dismissal from
the workplace for safety reasons. The obvious
challenge with this approach is that certain
medical conditions can cause an employee to
exhibit signs of impairment similar to those
on the observable list. The value of thoughtful
(attorney-reviewed) policies and well-prepared
training programs will pay dividends and could
avoid multiple problems later.
So, in this full-employment environment,
what is an employer and its HR Dept. to do?
There are no clear answers, unfortunately. Clearly employers cannot ignore the changing times
and technology, laws, and regulations. That
leaves us with guiding principles, including:
* Stay current with testing technology,
screening tools, and laws.
* Seek legal counsel.
* Review and update, if necessary, your
workflow processes and job descriptions.

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* Review and design administrative policies
and procedures with a focus on your unique
organization size, mission, customer,
patient, or client base and the relevant
regulations impacting you.
* This can include updating policies to specifically identify illegal (and legal) drugs,
define being under the influence, reasonable
suspicion, and cooperation.
* Emphasize the policy of non-discrimination
and readiness or willingness for reasonable
accommodation.
* Identify the safety or regulatory requirements of certain tasks of jobs, and thus
the need to prohibit any substance that
puts an employee in such positions from
being under the influence.
* Commit to providing confidentiality and
fair treatment.
* Create provisions for suspension and
reinstatement.
Most other provisions are likely already in
existing drug and alcohol polices for inspection,
collection and testing, and applicant screening.

Train everyone in any
revised policies and
procedures.
The clouds and fog that obscure HR's path
through this maze will begin to clear as the law
becomes seasoned with court cases. Attorneys,
legislators, regulators, and professional organizations that service the employment and HR
space will remain engaged to implement in
good faith the spirit and intent of the Medical
Marijuana Act. We live in times where science
and technology easily outpace our administrative, bureaucratic, and regulatory capabilities.
Those responsible for the organization's human
resources will adhere to their profession's tenets
and ethics and attend to the needs of their
employer and its employees.



Lancaster Physician Fall 2019

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