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What healthcare organizations can do to stay compliant in the era of marijuana legalization

Dawn Irizarry (dirizarry@cdflaborlaw.com) and Carolina Schwalbach (cschwalbach@cdflaborlaw.com) are both Partners at Carothers DiSante & Freudenberger LLP – Counsel to California Employers in Los Angeles, CA.

In 1996, California was the first state to legalize medical use of marijuana by enacting the Compassionate Use Act,[1] which was designed to provide certain legal protections to patients, caregivers, and physicians. Under the Compassionate Use Act, physicians who prescribe or recommend the use of smoked marijuana for medical reasons, individuals who use marijuana for medical reasons, and caregivers who assist those patients when using cannabis for medical reasons are exempt from criminal prosecution. Since the passage of the Compassionate Use Act, all but four states in the US have passed similar legislation[2] and some have adopted more expansive laws legalizing marijuana for recreational use, including Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and the District of Columbia.[3] Most other states allow some form of marijuana, CBD (cannabidiol, “the non-psychoactive component of the cannabis plant”[4] ), and/or low-THC (tetrahydrocannabinol, “the psychoactive component in cannabis” responsible for most of marijuana’s psychological effects) products for medical use, with the exception of Kansas, which only allows “CBD products with 0% THC”[5] ; Idaho, which has limited-access marijuana product laws;[6] and Nebraska and South Dakota, which “have limited, trial programs that are not open to the public.”

Even though the legalization of medical marijuana was meant (in part) to protect physicians from prosecution, this wave of legalization has left healthcare employers with many unanswered questions surrounding what their rights are with respect to THC testing, as well as the kinds of workplace policies employers can have regarding the use of marijuana. The answers to these questions may vary depending on the situation and the state at issue, among other reasons. Nevertheless, below, we provide some guidance regarding an employer’s rights and responsibilities in relation to marijuana testing.

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