Brice Wallace
One public vote, a compromise bill, special legislative sessions and two amendments later, Utah’s medical cannabis situation and its potential effects on employers remains in a haze.
Hoping to clear the air a bit, Ryan Nelson, Employers Council’s Utah president, conducted a breakout session at last week’s ChamberWest Fall Conference. But the presentation sometimes left audience members shaking their heads as they tried to understand and reconcile, for example, the conflicts between federal employment laws such as the Family and Medical Leave Act and the Americans with Disabilities Act and state code as they apply to medical cannabis users.
Add to that the knowledge that everything is still in flux. Last Monday, more than 100 pages of amendments were added to the state legislation, and a proposal by the local chapter of a human resources organization likely will be a topic for the 2020 general legislative session.
“One point of advice that I would strongly recommend for each of you is that you keep your eyes on this, because it’s going to continue to change,” Nelson told the group. “It’s not a static once-and-done, and Monday is a great example of that. The law will continue to be tuned-up and adjusted to meet not only the needs of the public but also the needs of the culture and public policy of the state.”
And those tune-ups and adjustments will affect companies.
“Understand that as a manager of people, this will apply because you will have employees who may be using medicinal cannabis, and that triggers a variety of obligations that the employer may then need to address,” Nelson said.
The legislation allows people with certain medical conditions — listed in the legislation — to purchase cannabis in medicinal dosages based on a qualified medical provider’s recommendation for treatment.
“Now, all of the regulatory process? It’s not there yet,” Nelson said. “In fact, they’ve just identified the eight cultivators, the growers, those who will receive the licenses, so the administrative process is happening but it’s not anywhere close to being ready to launch.”
Last Monday’s changes included ditching a state-centralized system for cannabis delivery and instead leaving that to 14 private pharmacies.
Nelson guided the audience through the federal and state provisions related to medical cannabis use, as well as employer obligations and various scenarios that might result in a workplace situation.
Private companies, he said, need to “decide when do we care about medical cannabis in the workplace, and why?”
In Colorado, where medicinal and recreational cannabis use is legal, companies needing more employees changed drug-testing practices because they could not find applicants who could pass a drug test screening for THC. “So a lot of Colorado employers stopped screening for THC in their drug tests, and I suspect we’ll have a similar outcome here,” Nelson said.
“In your roles as leadership, this [type of situation] is going to come up, and you need to be thinking about ‘How can I, with the information I now have, protect the organization and take care of my individual employee?’”
Other activities employers should undertake include determining standards and amending employee handbooks; reviewing and revising company drug-testing policies; and watching for developments that could occur in state law, federal law, and federal and state courts.
One proposed amendment to Utah law comes from the Salt Lake chapter of SHRM, which calls for the elimination of any requirement that private employers accommodate the use of medical cannabis or that would affect their ability to have policies restricting that use by applicants or employees.
“It reconciles a lot of the conflict and uncertainty that passing the law created,” Nelson said.
As federal and state law currently exist, private companies face myriad issues based upon a multitude of factors.
“The variety of industry, the variety of situations, the federal and state entanglement, for a Utah-based employer, frankly, it’s legally intriguing and academically interesting, but very difficult to plan for and then prepare because we don’t know what we don’t know, so how do we make a business decision today based on uncertainty that the law doesn’t provide clarity on?” Nelson said. “That puts an employer in a difficult position.”