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Guest Blog by Tawnya Brown, Central Maine Partners in Health

Let’s face it, Medical Marijuana is already in the workplace, and it’s a pretty safe bet that by this time next year recreational usage will have passed in Maine. Given that, what do we know so far and what can employers do to protect themselves and their most valuable assets?

What We Know

  • Despite laws in various states allowing its medical and recreational use, Marijuana remains an illegal drug according to Federal law.
  • Medical Marijuana is not a prescription. Rather, a health care provider “certifies” that a person has a qualifying medical condition or symptom that’s listed in the Maine Statute, which allows use of the drug for medical purposes.
  • The Medical Marijuana certification expires in one year and the certifying provider is not required to monitor the person’s medical condition.
  • An employer may not refuse to employ or otherwise penalize a holder of a Maine Medical Marijuana certificate solely for that person’s status as a qualifying patient or a primary caregiver. [22 MRSA 2423 E (2)]
  • The Department of Transportation’s Drug and Alcohol Testing Regulation, 49 CFR Part 40, at 40.151(e), does not authorize “medical marijuana” issued under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. (You can read more about this at https://www.transportation.gov/odapc/medical-marijuana-notice#sthash.1aMdLJQP.dpuf.)
  • Medical Marijuana is not approved by the official disability guidelines of the American College of Occupational and Environmental Medicine.

Available Tools for Employers

Clear Workplace Drug and Alcohol Policy that addresses Medical Marijuana

  • If you are going to accept the use of Medical Marijuana by employees, what are the expectations? Consider implementing a written policy that clearly states no use during work hours or on company property.
  • If you are not going to accept the use of Medical Marijuana by employees, you need to establish clearly written job descriptions for safety sensitive positions prohibiting use of the drug.

Post-offer Physical Assessment & non-DOT Drug Testing (occupational medical provider)

  • Occupational medical providers assess medical conditions that may affect the ability of employees to perform their job requirements safely. Their evaluations determine if an employee can perform the essential functions of the job with or without job modifications.
  • If the job will place the employee and/or others at risk of injury and reasonable accommodation cannot be made, the employer may refuse to hire the individual for the particular job.

Fitness for Duty Evaluation (occupational medical provider)

  • A Fitness for Duty (FFD) evaluation is a medical examination of a current employee to determine whether he or she is physically or psychologically able to perform a particular job safely.
  • An FFD evaluation might also be required of an employee whose conduct on the job gives the employer reason to believe he or she is not able to perform the job safely.

Clearly, times are changing with regards to Marijuana in the workplace. As we move forward, accepted best practices will undoubtedly emerge. In the meantime, staying knowledgeable about what you, as an employer, can do to protect your organization and your employees is critical to maintaining workplace safety.

For more information or guidance, contact Tawnya Brown (207-741-0220) at Central Maine Partners in Health, central and southern Maine’s premier provider of Occupational Health services, including injury management, post-offer employment examinations, Fitness for Duty Evaluations, DOT physicals, and drug and alcohol testing.