On December 3, 2018, the Utah State Legislature met in special session and passed HB 3001, enacting the Utah Medical Cannabis Act (“the Act”). The Legislature approved the bill by more than a two-thirds majority. Later that evening, Governor Gary Herbert signed the bill into law, which went into immediate effect.
The Act creates a process by which patients with a qualifying medical condition may obtain a medical cannabis card upon the recommendation of a qualified medical provider. A medical cannabis cardholder may subsequently purchase, transport, and consume cannabis, in specified limited quantities and in a medicinal dosage form, to treat symptoms of the medical condition. The Act also decriminalizes under Utah law the possession and consumption of cannabis. Even though the Act speaks of “medical cannabis” and requires licensed physicians and pharmacists to consult with patients, the Act does not equate medical cannabis to a prescription drug approved by the United States Food and Drug Administration.
Although the Act is over two hundred pages in length, it does not specifically state what a private employer may or may not do. The absence of clear direction may ultimately result in claims by employees challenging their employer’s practices. The Act does, however, provide guidance to public employers. In a section entitled, “Nondiscrimination for Medical Care or Government Employment,” the Act requires public employers to “treat an employee’s use of medical cannabis...in the same way the [public employer] treats employee use of opioids and opiates.” This requirement does not apply “where such treatment would jeopardize federal funding for the employee’s position.” (See Utah Code Annotated 26-61a-111).
Based on the absence of prohibitive language in the Act, private employers may prohibit the possession and use of cannabis (medical or otherwise), in the workplace, and may test for the presence of marijuana as currently permitted by Utah law. Additionally, the Act does not preclude employers from imposing disciplinary measures against employees who test positive for marijuana or violate the employer’s standards. For employers closely regulated by a federal agency, the Act will not change the employer’s obligation to comply with applicable federal law. Consider, for example, Department of Transportation regulations concerning drug test results for transportation employees. The transportation employee’s use of medical marijuana, permitted under state law, is not a valid medical explanation for a positive drug test result. See 49 CFR § 40.151(e).
Employers, however, must consider other laws, both federal and state, as they engage with their employees under the Act. For example, the qualifying medical conditions listed in the Act are conditions which will likely trigger protections under the Americans with Disabilities Act (as a disability) and the Family Medical Leave Act (as a serious health condition). Employers must be prepared to properly respond to the requirements of these federal laws when the employer gains knowledge of an employee’s medical condition under the Act. In a similar fashion, employers must also consider and properly respond to Utah law requiring accommodations for employees with disabilities.
Legal Alert: To help employers understand and properly respond to the Act, on January 25, 2019 from 8:00- 10:00am, Employers Council will hold a Legal Alert. This session will provide an overview of the law, discuss how it impacts employers, and provide sample policies and provisions to consider. Cost is $99 per person and seating is limited. To reserve your spot, contact the Utah office at SaltLakeCity@EmployersCouncil.org or 801.364.8479.