Getting into the Weeds—the Practical Implications of Utah’s Medical Cannabis Act

In 2018, Utah joined a majority of states to legalize the use of medical marijuana under the Utah Medical Cannabis Act (the “Act”).  The Act contemplates a statewide, comprehensive regulatory scheme for the controlled production and patient use of medical marijuana.

On September 23, 2019, Governor Herbert signed into law new amendments to the Act that made significant changes to the state’s regulatory scheme.  Changes include, eliminating the proposed state central fill pharmacy and opting instead to issue more licenses to private pharmacies for the distribution of medical cannabis,[1] the creation of an online state central patient portal for electronic access to home deliveries of medical cannabis shipments,[2] providing for electronic medical cannabis cards,[3] establishing licenses to research universities to conduct academic medical cannabis research,[4] changes to government land use control over cannabis production establishments,[5] directing judicial consideration of an individual’s lawful use and possession of medical marijuana,[6] and addressing a parent or guardian’s use of medical cannabis in child welfare cases,[7] among others.

A new provision was also added, mandating any employee, officer, or agent of the state or a political subdivision to consider lawful use or possession of medical cannabis under the Act the same as the lawful possession or use of any prescribed controlled substance.[8]  This amendment altered Utah Code Ann. § 26-61a-111, which previously required public employers to treat an employee’s lawful use or possession of medical cannabis the same as it would an employee’s use or possession of opioids and opiates.[9]

What do the Act and its recent changes mean for public employers?  Public employers must be mindful that even though the state has not yet begun issuing patient medical cannabis cards, the use and possession of medical cannabis has been legalized under the Act since 2018.  With certain restrictions,[10] the Act provides for the lawful use or possession of medical cannabis by an individual with a qualifying condition as defined by statute, such as HIV, cancer, Crohn’s disease, epilepsy, multiple sclerosis, post-traumatic stress disorder, or other condition that may be approved on a case-by-case basis by a board of state-designated physicians.[11]

However, public employers must also be aware that cannabis—even medical cannabis—is still considered illegal as a Schedule I controlled substance under federal law.  This means that federal acts such as the American Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”) do not immunize an employee’s use of medical cannabis.  Other federal regulations, such as those governing interstate transportation, may also restrict hiring or retaining individuals who use medical cannabis.  Thus, under the Act, a public employer is not required to treat an employee’s lawful use as it would any prescribed controlled substance if doing so would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee’s position.[12]

For employment assignments or duties that arise from or relate to obligations under the Act, such as selling, distributing, or transporting cannabis, public employers are required to provide notice that the assignment or duty under may violate federal law.[13]  By signing the notice and accepting the position or undertaking the duty, an employee may not refuse to carry out the responsibility that an employee reasonably believes is in violation of federal law.[14]  If a current employee refuses to sign the notice, a public employer may not take retaliatory action against the current employee.[15]

In navigating a public employee’s use or possession of medical marijuana at the public workplace, consider the following scenarios:

What can/should public employers do if pre-employment screening yields a positive test for marijuana?

• Investigate whether the positive test results from the use of medical cannabis in compliance with the Act.
  • Does the prospective employee have a qualifying condition?
  • Does a qualified medical provider believe it could help treat the condition?
  • Does the employee have a medical cannabis card?
• If it does, determine whether the individual’s lawful use under the Act would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee’s position.
• If it would not, treat it as a positive test for any prescribed controlled substance.

What can/should public employers do if an employee is impaired at work and drug testing reveals a positive test for marijuana?

• Investigate whether the positive test results from the use of medical cannabis in compliance with the Act.
• If it does, respond how you would to an employee who is impaired at work due to use of any prescribed controlled substance.
• Understand that the Act does not immunize individuals from the consequences of impairment or intoxication caused by illegal use, or overuse.

What can/should you do if an individual with a qualifying condition and a recommendation from a qualified physician to use medical marijuana applies for a job that requires the operation of motor vehicles or other machinery?

• Determine whether medical cannabis use in compliance with the Act would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee’s position.
  • For example, if the employee requires a Commercial Driver’s License (CDL), the Department of Transportation will require drug testing. Under federal law, medical marijuana remains a controlled substance, and a positive test would be considered a failed test.
  • Are you subject to the Drug-Free Workplace Act?

For help in navigating this new and emerging area of the law or for any questions regarding the employers, transportation companies, and governmental entities practice areas, contact a Government Entity Practice Group attorney. 

 

[1] Utah Code Ann. § 26-61a-111

[2] Id.

[3] Id.

[4] Id.

[1] Utah Code Ann. § 26-61a-305

[2] Utah Code Ann. §§ 26-61a-601, 604

[3] Utah Code Ann. §§ 26-61a-201, 601

[4] Utah Code Ann. §§ 4-41a-901- 903

[5] Utah Code Ann. § 4-41a-406

[6] Utah Code Ann. § 78A-2-231

[7] Utah Code Ann. § 78A-6-115

[8] Utah Code Ann. § 26-61a-115

[9] Utah Code Ann. § 26-61a-111

[10] Utah Code Ann. § 58-37-3.7

[11] Utah Code Ann §§ 26-61a-104, 105

[12] Utah Code Ann. § 26-61a-111

[13] Id.

[14] Id.

[15] Id.