April 01, 2017 Features

Cannabis and Hospitals (May Not) Mix

By Bob Morgan

Medical cannabis now enjoys 89 percent public support, and recreational cannabis use is approaching 60 percent approval across the country—but health system executives probably feel less optimistic. With 29 state-sanctioned medical cannabis programs, and eight states allowing recreational use, hospitals and health systems across the country are facing new questions about patient care, safety-sensitive jobs, and the true definition of “impairment.”

Of course, cannabis continues to be an illicit Schedule I substance under the U.S. Controlled Substances Act (i.e., one that has no nationally accepted medical use and a high potential for abuse), despite state-sanctioned use. This creates perils for healthcare systems navigating legal considerations for cannabis use by employees and patients.

Each State Cannabis Law Is Unique

Every state has outlined different employment protections and corresponding employer discretion about legal cannabis users. For example:

  • New York specifically considers certified medical cannabis users as having a disability,1 raising questions about the ability of an employer to discipline an impaired employee in a safety-sensitive position.
  • Pennsylvania’s nascent medical cannabis program allows hospitals to prevent certified medical cannabis users from providing healthcare services that cause a public health or safety risk.2
  • Illinois specially defines “impairment,” giving employers direction when disciplining a medical cannabis-using employee.3

These differences determine what protections are created for medical cannabis patients, and whether those protections trump historical employer discretion about hiring and firing decisions.

Some Issues Will Be Familiar to Hospitals

In a general sense, the healthcare industry has been considering substance use and impairment questions for decades. Doctors battling alcoholism and painkiller-addicted nurses impact the healthcare industry as in any other high-stress profession. Emergency rooms often consider whether a patient truly requires a narcotic or is a so-called “drug seeker.” Hospital employee policies address workplace drug testing for clinical and nonclinical staff. Substance abuse and addiction treatment are commonplace from California to Florida. But the rapid expansion of legalized cannabis has drawn new focus to the impact on healthcare providers.

Employee Manual: Cannabis Edition

Employment policy manuals are ubiquitous in the healthcare industry, but often rest, untouched, on hospital shelves. A state’s adoption of medical cannabis laws should spur lawyers and compliance officers to dust off the stack of policies.

In addition to reviewing the laws and regulations in your state, consider the unintended consequences of an employee manual:

  • Are medical cannabis users protected by disability-based antidiscrimination protections? Does an employer have the right to enforce zero-tolerance drug use policies?
  • Can the hospital refuse to hire a job applicant who fails a drug test?
  • Must the employer allow on-site cannabis use if the employee claims to need the drug for life-threatening conditions like epilepsy?
  • Does recreational-use legalization allow users to indiscriminately smoke cannabis at their desks? Oftentimes state Smoke-Free Acts prevent cannabis use indoors at healthcare facilities even in recreational states. Colorado’s Clean Indoor Act specifically adds healthcare facilities like hospitals and doctor’s offices as locations where cannabis smoking is prohibited.4 Yet most states do not add marijuana-infused products or vaporizers to this indoor prohibition, raising discretion issues for healthcare providers.

Most states protect medical cannabis patients from hiring discrimination simply as a result of being a medical cannabis cardholder—though policy manuals are often silent on this topic. Often, employment manuals will indirectly address many of these questions, but a thorough legal review is critical to ensure compliance with state law and hospital values.

Employee drug testing further complicates the situation with the fact that residual cannabis may be detected in commercial drug tests up to 30 days after use. Certainly, an individual who used cannabis many weeks ago would not be impaired, but an employer will lack conclusive information and will often apply a blanket zero-tolerance policy.

State-legal cannabis raises liability questions for healthcare providers from both an employment and a patient care perspective. In addition to ordinary employment law issues, medical cannabis users may allege the failure to hire, or decision to terminate, was based only on their patient cardholder status. Patients of hospitals and residents of long-term care facilities may similarly demand access to, and even use of, medical cannabis while on premises. Patients may seek recourse from healthcare regulators or insurance commissioners, or directly through state courts.

Employee cannabis use raises the greatest specter of hospital liability. Like use of other over-the-counter medications that could cause an individual to be functionally impaired, a hospital should be vigilant to protect patients from care by a physician or medical staffer under the influence of cannabis. Errant patient care resulting from employee cannabis use could threaten state or federal funding, or even civil litigation.

Patient Liability

While one liability concern includes direct access to medical cannabis by patients, the impact on other patients and residents must be considered. In a double-occupancy room, or an open-campus environment, facilities must take care to avoid inadvertent cannabis access by patients not approved by the state. When a facility permits patients to bring their cannabis on-site (akin to bringing in medications from home), the products must be securely stored and not accessible to other patients. Physicians and medical staff should be directly notified, and patient records should reflect the on-site storage and consumption.

Role of the Regulator?

Cannabis use by hospital patients creates an unusual conflict for healthcare regulators. The federal government has made it clear to healthcare providers that the U.S. Centers for Medicare and Medicaid Services (CMS) prohibits cannabis use within federally funded facilities.5 At the same time, regulatory functions like surveys and inspections often fall to state regulators.

In Illinois, for instance, the Illinois Department of Public Health is responsible for conducting both federal certification and state licensure surveys. In situations where the regulators are simultaneously responsible for enforcing federal certification regulations (where cannabis is unambiguously prohibited as a Schedule I substance) and state licensure regulations (where medical cannabis use is expressly permitted under limited circumstances), confusion is ever present.

Long-term care facilities face even more uncertainty as resident medical care decisions are expressly driven by the resident, not the facility (as compared to a hospital). If a nursing home resident demands access to his or her physician-certified medical cannabis, would it be a violation of the CMS Conditions of Participations to deny them?

Compassion vs. Patient Care vs. Risk to Others

Many hospitals seek to find a balance between the primary function of protecting patients and the institution itself, versus compassion for the medical cannabis-using employee and patient. Although compassion and patient-driven care are prioritized, they nevertheless take a backseat to ensuring a safe facility. Some hospitals are willing to consider policies and protocols for employee or patient medical cannabis use so long as there are well-designed safeguards in place and extensive staff education. Other healthcare institutions have entirely opted out of permitting employee and/or patient use.

Expect hospitals across the country to increasingly face these challenges until the U.S. government chooses to treat cannabis as any other over-the-counter drug. Until then, seek legal counsel to make sure your facility is limiting exposure and maximizing compliance. ◆

Endnotes

1. N.Y. Pub. Health Law § 3369.

2. Pa. Pub. L. 84, No. 16, § 510(4) (2016).

3. 410 Ill. Comp. Stat. 130/50(f).

4. Colo. Rev. Stat. § 25-14-204(1)(j).

5. See Issue Brief: Medical Cannabis in Health Care Facilities, Minn. Dep’t Health (Nov. 2015), http://www.health.state.mn.us/divs/fpc/profinfo/ib15_4.html.

Bob Morgan

Bob Morgan (RMorgan@muchshelist.com) is special counsel with Much Shelist, P.C., and is a healthcare regulatory and policy attorney with extensive experience in the still-developing cannabis industry. As the first statewide project coordinator for the Illinois Medical Cannabis Pilot Program, Morgan was appointed by the governor of Illinois to develop and implement a regulatory framework for the use of cannabis by eligible patients. He draws on his experience working with state and federal agencies and private businesses to help clients understand and operate in this growing sector of the economy.