Keith A. Clark 2018-01-27 00:34:29
The challenges of change come in many ways. Some are based on strategic thinking with respect to the Mission, Vision, Values, and Goals of the organization as a basis for offering enhanced or new products and services. Others are less controllable, such as acts of God, terrorism, economic cycles, etc. These “uncertainties” are future forces that are possible, but not probable. One should spend little time planning on this. However, “trends” can provide future opportunities or threats in which the outcome may be highly predictable, and they should not be disregarded. A current example of a “trend” is the rapid societal changes with respect to marijuana use. In a period of less than 5 years, Pennsylvania has gone from marijuana being a totally illegal substance to being part of a significant “trend.” Now, it has come to our attention that the banking regulators want policies in place on these marijuana issues although federal and state government have not reconciled their conflicting positions. FinCEN and the Federal Department of Justice (“DOJ”) have provided due diligence guidance for servicing an industry which is illegal under federal law. However, only Congress can change the current illegality of the use of cannabis. Federal Executive Branch enforcement policies tacitly enforcing same could change by the “stroke of a pen”, and put a financial institution at risk. Pennsylvania’s Medical Marijuana Act (“Act”) creates a newly protected employee class. An employer may not “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee” related to compensation or terms and conditions of employment solely on the basis of that employee’s status as a “certified medical marijuana user.” Are employers required to make accommodations for the use of medical marijuana? May they discipline an employee for working under the influence when the employee’s conduct falls below the standard of care for that position? The Act provides some clear examples of employee conduct which reflect issues of potential physical danger to others where someone is under the influence of marijuana on the job. Similarly, there are some government agency policies that require employers to act where an employee’s use of a drug may put others at safety or health risk. But, what about “mental impairment,” when an employee’s job requires intellectual knowledge and agility? At least one state Supreme Court has ruled in favor of employees generally stating that employers may not punish qualified medical employee use of marijuana even while on the job. If so, must you provide a “reasonable accommodation” under the ADA? These issues reflect challenges of a new “trend.” In reaction, an employer should consider: (1) evaluating certain positions, the impact of use of medical marijuana on an employee in that position, and his/her ability to maintain an appropriate standard of performance; and (2) an internal company policy on prescription marijuana; and (3) attempting to make reasonable accommodations for those who have a valid “medical marijuana use card.” Whatever policies are put in place now to address these two issues, should be very carefully and conservatively drafted to attempt to limit the employer’s liability and, employer’s flexibility to change policy promptly after the state and federal regulatory and legal issues are settled. KEITH CLARK IS CHAIRMAN AT SHUMAKER WILLIAMS, P.C. HE CAN BE REACHED AT 717.763.1121 OR CLARK@SHUMAKERWILLIAMS.COM. SHUMAKER WILLIAMS, P.C. IS AN ASSOCIATE MEMBER OF PACB.
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